Emeryville Research Center

114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Emeryville Research Center, Shell Development Company, a Division of Shell OR Company and Association of Industrial Scientists. Case 20-CA-4446 January 15, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On August 23, 1968, Trial Examiner Eugene K. Kennedy issued his Decision in the above-entitled proceeding, 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. The General Counsel filed cross-exceptions, a supporting brief, and a brief in answer to Respondent's exceptions, and Respondent filed a brief in response to the cross-exceptions. 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 briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modifications: We agree with the Trial Examiner that the Respondent violated Section 8(a)(5) by refusing to provide the Union with the charts known as "salary guide curves," current as of the date they were requested, a written explanation of the salary guide curves,2 merit ratings for employees in the bargaining unit and salary guide curves for the previous 5 years,3 and a list containing certain information including academic degrees of employees and the principal type of work they have been engaging in.4 'On page 2 in footnote 3 of his Decision, the Trial Examiner inadvertently refers to G. C Exh. 19 as Exh. 17 We hereby correct this error 'The need for this written explanation may have been lessened, but was not eliminated, by the general written description and the more detailed oral explanation given to the Association in 1965 In addition to the reasons stated by the Trial Examiner, a detailed written explanation of the guide curves will have a greater relevance in the future because the Association will now, for the first time, receive the guide curves themselves Since we agree with and adopt the Trial Examiner's findings that the guide curves must be furnished in order for the Union to fulfill its role as statutory bargaining representative, the usefulness of this data will certainly be minimized if unaccompanied by explanatory materials of sufficient detail to allow the information the curves purport to In concluding that the information sought by the Union was relevant and necessary in order that the Union perform its functions adequately, the Trial Examiner did not rely on the reasons the Union advanced at the hearing for needing this information which had not been stated to the Respondent at the time such information was demanded. As the reasons advanced at the hearing were in the main simply amplifications of the general reason stated earlier, namely, that such information would enable the Union to bargain intelligently, we think it proper and have considered these reasons and relied upon them, to the extent necessary to shed light on the relevance of the information sought.5 However, we disagree with the Trial Examiner's recommendation finding that Respondent violated Section 8(a)(5) by refusing to furnish a written explanation of the merit rating system. A written explanation given in 1965, as part of a document entitled "Professional Salary Administration," describes the preparation of a rank order list derived from the evaluations of each professional employee by his department head with the aid of the employee's supervisor, which evaluations from each department are then integrated into a composite list by the Directors and their department heads, and reviewed by the Vice President. It also describes the placement of each employee, on the basis of the rank order list, into one of ten merit groups, and discusses the factors which determine the employee's salary within the range of salaries indicated by the guide curves for his merit group. The record indicates that the factors in the merit grouping evaluation of the employee and in the determination of his salary within the group are subjective, unlike the factors that go into the construction of the guide curves, and that there are no formulae which determine the relative weight of each of the subjective factors in the total merit evaluation of the individual employee. As it would appear, on the instant record, that the information originally provided the Union by the Respondent explains to the fullest possible extent the method by which merit ratings are determined, communicate to be interpreted, and their validity as a guide to salary ranges to be evaluated. 'In agreeing with the Trial Examiner that Respondent was under an obligation to provide the Union the requested information covering prior years, we are satisfied that the trends that would be revealed through this data have special significance in this case, The importance of past salary trends is heightened not only by the "competitive adder" whereby Respondent raises salary levels to meet projected increases to be paid in the future by competitors, but also because of the extent to which basic salaries are determined through merit ratings and the subjective determinations on which they are based In our opinion, the trends that may be gleaned from recent history are necessary to enable the Union to assess and inform unit employees whether the Respondent's existing system has produced equitable results, and, if not, to determine whether the grievance procedures or collective-bargaining negotiations should be resorted to in order to afford unit employees greater protection in this area 'See Cowles Communications, Inc, 172 NLRB No 204. 'See Standard Oil Company of California, Western Operations. Inc, 166 NLRB No. 45, enfd 399 F 2d 639 (C.A 9). 174 NLRB No. 23 EMERYVILLE RESEARCH CENTER we find that the General Counsel has failed to establish by a preponderance of the evidence that Respondent has not provided all information necessary to an understanding of the merit rating system. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Emeryville Research Center, Shell Development Company, A Division of Shell Oil Company, Emeryville, California, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: (1) Delete "A written explanation of Respondent's merit rating system" from paragraph 1(a) of the Trial Examiner's Recommended Order, and from the appendix attached to the Trial Examiner's Decision, where it appears as a separate indented paragraph. (2) Delete from paragraph 2(b) of the Recommended Order the words "to be furnished," and substitute the words "on forms provided." TRIAL EXAMINER' S DECISION STATEMENT OF THE CASE EUGENE K. KENNEDY, Trial Examiner: This matter was tried in San Francisco, California, on various dates between December 5, 1967, and March 14, 1968.' The general issue presented is whether Emeryville Research Center, Shell Development Company, A Division of Shell Oil Company, herein Respondent, violated the National Labor Relations Act, as amended, herein the Act, by failing to supply certain data allegedly necessary for collective bargaining. Upon consideration of the entire record, my observation of the witnesses, and on a study of the briefs submitted by the parties, the following findings of fact, conclusions of law and recommendations are made.' 1. JURISDICTION OF THE BOARD AND BUSINESS OF RESPONDENT Respondent is a Delaware corporation engaged in petroleum and chemical research in Emeryville, California. In the conduct of its business operations, Respondent annually sells goods and services valued in excess of $50,000 directly to customers located outside the 'The charge was filed on March 17, 1967, and the complaint issued on August 18, 1967 'Upon Respondent's unopposed motion , the transcript is corrected as follows beginning at page 433, line II Q. Yes I am asking what the company says That is the reason why I am asking it, because you said what the company says and I am trying to get at exactly what the company did say And my question to you is whether it in fact said that the company pays competitive salaries, not that the guide curves pay competitive salaries. 115 State of California. Also in the course and conduct of its business, Respondent annually purchases and receives goods valued in excess of $50,000 directly from suppliers located outside the State of California. Respondent is, and at all times material herein has been, an employer engaged in commerce and in operations affecting commerce within the meaning of the Act. 11. THE LABOR ORGANIZATION INVOLVED The Association of Industrial Scientists, herein called the Association or AIS, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The AIS has represented a unit of Respondent's professional employees at Emeryville, California, since 1948. The unit approximates 430 employees in number, including chemists, physicists, engineers, metallurgists and mathematicians. The parties agree and the record reflects that the bargaining relationship is a sophisticated one. Of importance to the issues here is a system where the Respondent has unilaterally for many years determined the salaries of the unit employees on an individual basis. This is qualified to the extent that the AIS has bargained with respect to criteria and groups that might be excluded from a general salary increase as well as having a contractual right to assent to a general salary increase In July 1966, Respondent unilaterally instituted a wage increase system which it called a "competitive adder." It seems to differ from "general increases" as mentioned in the collective-bargaining agreement in that any increase is based partially on estimated future trends justifying an increase whereas the philosophy behind the general salary increase was that the emphasis of such increase was designed to meet current competitive salaries.' The history of bargaining as reflected by the record establishes that over many years Respondent supplied the AIS with economic data, some pursuant to contract and some not. Prior representatives of the AIS during the past years on occasion evidenced satisfaction with the data supplied. In the situations where the information involved individual salaries, it was usually assembled in such a form as to make salaries of individuals difficult, if not impossible, to identify. In the past the AIS went along with this method of preparing such data, and apparently in accord with the proposition that it was desirable and important to keep salaries known only to Respondent and the individual receiving them. The bargaining history also shows that the AIS has heretofore accepted the salary system of the Respondent, The record does not reflect any attempt by the AIS to propose its own salary system. In the past and during the period leading to this dispute, the parties have bargained concurrently and separately on salary questions and other contract proposals Salary discussions can be had at any time by mutual consent of the parties according to the ' G C. Exh. 17 was offered to show why the AIS needed certain information from Respondent . It was denied admission based on the hearsay use for which it was offered Because the oral testimony on this subject is extremely scanty, the description of the competitive adder system in G. C. Exh. 17 is received into evidence to establish the date of the institution of the competitive adder and to furnish a general description of the system. 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collective- bargaining agreement. On several occasions, at a time when the collective-bargaining agreement was in effect, Respondent has supplied the AIS information not specified in the agreement. This approach to collective bargaining was demonstrated after January 1967 when Respondent and the AIS carried on negotiations as to the appropriateness of the information requested by the AIS in the letter of January 30, 1967, set out below. The general problem involved here is that the AIS claims it does not have enough information about Respondent's salary system to bargain intelligently. The General Counsel concedes that in the past the AIS may have been derelict in obtaining the information to which it was entitled but that as of now it is entitled to such information. Respondent, not unnaturally, faced with a deviation from long bargaining practice appears to regard the information sought as irrelevant or unnecessary or already within the possession of the AIS or that the AIS has waived its right to certain data by signing an agreement excluding such data when it had been requested by the AIS during the course of collective bargaining, and prior to the execution of the agreement. The information requested by the AIS and the reasons of Respondent for refusing to supply the items requested are the ingredients of the dispute and a somewhat detailed breakdown is relevant to the legal issue presented. B. The Events Leading Directly to the Dispute During the 1966 negotiations, commencing in September, leading up to the execution of the 1966 contract in January 1967, the AIS requested that the obligation of Respondent to furnish some information be incorporated in the collective-bargaining agreement. The information related to components of Respondent's salary administration system called guide curves and merit ratings. The guide curves and merit ratings prepared by Respondent are a significant part of its salary administration system. The method of preparing the curves by Respondent is not simple to fully understand for those unversed in this technical area as evidenced by the fact that it took approximately an hour and a half for Respondent's spokesman to explain them to the AIS representatives in a bargaining session. Since both parties were represented by highly skilled and trained people who could for this purpose be described as economic scientists, and since that explanation is not in the record, it will be sufficient for the purpose of this decision to give a general description of the guide curves as well as the merit rating system. There are 9 guide curves which make 10 bands which projected on paper show a vertical and horizontal axis. On the vertical axis are dollar figures ascending in amount starting from the bottom. Along the horizontal axis are numbers reflecting experience ratings varying from left to right and from lowest to highest. Respondent assigns a merit rating to an employee according to what it believes his value is to Respondent. Each merit rating corresponds numerically with one of the guide curves and establishes the position of the employees on the vertical scale. The location of the employee on the guide curves on the horizontal scale is keyed to his experience credit. This may be derived from work experience, educational degrees or both. This brief description of Respondent's salary administration system admittedly is a skeletal one. However, the key aspect as far as the issues presented is that it includes the tools used by Respondent to fix salaries, and the position of the AIS is that it does not know enough about the guide curves or the previous merit ratings to bargain intelligently. The term previous merit rating is used because the merit ratings commencing in July 1967 are being furnished to the AIS. It still, however, insists on the need for the merit ratings for the previous 5 years. The guide curves are derived from about 6,000 salaries furnished by 11 competitive companies. Respondent's main stated reason during bargaining for refusing to give the guide curves to the AIS is that it might result in the competitor companies refusing to furnish the data if the guide curves were disclosed to the AIS, and thereby jeopardizing its salary administration system. The AIS also requested additional information relating to academic degrees among the employees it represents. The letter of January 30, 1967, sent by the AIS to Respondent is a formulation of the AIS demands followed by a refusal to furnish all the information requested and to the present dispute. Following is the January 30, 1967, letter: January 30, 1967 Shell Development Company Emeryville, California Attention: Mr. F. H. Douma Gentlemen: As you know, during past negotiations we have at various times requested information as to the facts and methods which you use for determining the salaries of persons in the unit which we represent. You have declined to provide us with much of the information requested. We now wish to resolve this issue between us. It is therefore requested that you provide us for our use in connection with the salary negotiations presently in progress between us information listed below: 1) A written explanation of the salary guide curves used by you in fixing salaries, and copies of the guide curves as of a current date and as of January 1 for the past five years 2) Actual merit rating data used by you and its application. In this connection we request that you provide: a) A written explanation of your merit rating systems. b) A list, unidentified by name, showing individual salaries, merit ratings, academic degrees and experience credit of employees as of a current date and as of January 1 and July 1 each year for the past five years. We request that you provide all, or as much of the above information as possible by February 13, 1967. If you have any question respecting our request, please notify the Association Very truly yours Association of Industrial Scientists The written reply from Respondent was as follows: EMERYVILLE RESEARCH CENTER 117 February 13, 1967 without further avoidable delay. You are therefore Association of Industrial Scientists Post Office Box 8003 Oakland, California 94608 Gentlemen This is in reply to your letter of January 30, 1967, which requested certain salary information and data. Enclosed are: 1. A list, unidentified by name, showing individual salaries of all employees you represent by experience credit, as of January 1, 1967, and January 1, 1966. Entrance salaries are shown for individuals employed in the interim. 2. A list showing groups of employees by years since first college degree, as of January 1, 1967. This list shows the median salary and number of employees in each group. As you realize, in some instances a considerable amount of effort would be required to compile the remaining requested information, and certain of the requested data would reduce the anonymity of the present data. We should, therefore, like to discuss with you the relevance of the requested data to our current negotiations. We would suggest that we have a meeting on the subject of the remaining requested data sometime on or after February 20. Very truly yours /s/ Frank H. Douma Frank H. Douma, Manager Personnel and Industrial Relations The AIS responded as follows: February 27, 1967 Shell Development Company Emeryville, California Attention: Mr. F. H. Douma Gentlemen: This refers to our continuing effort to obtain from you information and data respecting the method you use for determination of salaries of employees in the unit which we represent. You have at various times provided us with certain statistical data requested, but so far you have failed to supply us with the basic information necessary to give the data useful meaning. In particular, you have failed to comply with our request for actual merit rating data used by you, and you have failed to provide the guide curves which you use in fixing salaries. We believe it is fair to say that, in substance, your response to our requests for the above information has been to insist that we first demonstrate to your satisfaction its relevance to current negotiations before you will consider whether and in what respect you will comply. To date you have not been satisfied with our explanation that the information is reasonably necessary for us to bargain intelligibly on behalf of the employees in the unit. Our counsel advise us that the National Labor Relations Board, and if necessary the Federal courts, provide a forum for the resolution of issues of this nature. We believe that the matter must be determined advised that we intend to proceed before the National Labor Relations Board unless within one week you either provide the information requested in our letter to you of January 30, 1967, or give us a definite date in the near future when you will provide it. Very truly yours Association of Industrial Scientists Respondent replied to the February 27 AIS letter as follows: March 7, 1967 Association of Industrial Scientists Post Office Box 8003 Oakland, California 94608 Gentlemen: This is in response to your letter dated February 27, 1967, in which you indicated your intention to proceed before the National Labor Relations Board unless we furnished you, within one week or on a definite date, with the information you requested in your letter of January 30. The specific information requested in that letter was as follows: "1) A written explanation of the salary guide curves used by you [the Company] in fixing salaries, and copies of the guide curves as of a current date and as of January 1 for the past five years. "2) Actual merit rating data used by you and its application. In this connection we request that you provide: "a) A written explanation of your merit rating system. "b) A list, unidentified by name, showing individual salaries, merit ratings, academic degrees and experience credit of employees as of a current date and as of January 1 and July 1 each year for the past five years." With respect to a portion of item 1 and item 2(a), the A.I.S., on June 30, 1965, was given a written explanation of the salary guide curves and the merit rating system. Further, a detailed explanation of the guide curves was given in a session on July 15, 1965, and the Company offered to give a repetition of this in the spring of 1966, at which time the A.I.S. informed the Company that their minutes of the previous presentation were sufficiently good that another session was not required. Subsequently, at the request of the A.I.S., on September 13, 1966, this detailed explanation of the guide curves was repeated. With respect to a portion of item 2(b), lists unidentified by name showing individual salaries and experience credit of employees as of January 1 have been given the A.I.S. each year since 1948 and also, most recently, as of November 16, 1962, August 1, 1964, and October 1, 1965. We are therefore somewhat at a loss as to why you asked for this information "as of a current date and as of January 1 and July 1 each year for the past five years." Further to compile such a listing as of July 1 of each year of these past years would be quite difficult and probably would not be wholly accurate in any event. According to your letter of February 27, your basis for requesting the guide curves and ratings is that "it is reasonably necessary for us to bargain intelligibly on 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD behalf of the employees in the unit." We assume your basic argument is that which you reiterated in our discussions, i.e., your need to bargain intelligently. However, you did not choose to elaborate on this statement in spite of our questions in both the January 30 and February -21 meetings In the negotiations which were completed in the fall of 1966, you asked for guide curves and merit ratings as you have done numerous times before. We explained to you at considerable length our reasons for not wishing to grant this information. You apparently found those reasons relatively persuasive; in any event we were able to reach agreement on a new contract without our . agreeing to provide you with' that information. We have given very serious thought once again to these matters. As you know, the inclusion of the Supervisors in the rating system with the professionals has been one of the reasons for our refusal to give you the merit, ratings you wish. At this time we are again reviewing the possibility of devising a rating system wherein no information concerning Supervisors will be divulged if information concerning merit ratings of the employees in the A.I.S. bargaining unit is given to you. If we are able to satisfy ourselves that such a system can be devised and will be a satisfactory system, we shall put it into effect, In connection with your request for the guide curves, you stated that we have failed to supply the "basic information necessary." You have received the precise salary and experience credit for each of the people you represent each year for some 20 years. From these data, you have been able to ascertain numerous facts such as the actual movement of salaries from year to year, distribution of increases among the people you represent, increase to each individual, average increase, range of' salaries paid, etc. These data, it is obvious, give you an exceedingly clear picture of precisely what the current situation is with respect to the people you represent, what the past situation has been, and what the changes have been. In addition, from time to time we have given you information about specific items; for example, we have given you histograms of the distribution of the employees as to whether they were in their proper decile, above it, or below it. Also, last spring we put together a grid which in effect demonstrated that there was no significant age bias. We do not see how the information as to the guide curves could be said to be more fundamental than these data. We, perhaps, are not as perceptive as we might be and if you are prepared. to describe to us your needs in some detail rather than simply to state and restate that you need the guide curve information in order to bargain intelligently, the possibility exists that we may be able to come up with information which will further clarify the salary situation of all the people you represent. We do not feel that, absent such information as to your needs, it would be appropriate to provide the guide curves to you in view of the jeopardy in which such action would place our current salary system. As you know, the guide curves are derived, by procedures previously outlined to you, from salary data which we secure in confidence from a number of competitive research groups. If we are to be compelled to disclose these guide curves, we shall have to reconsider our entire approach to salary administration. Obviously, we could no longer assure the other research groups of the absolute confidentiality of salary data we secure from them. This might well mean that we could be deprived of access to a substantial body of extremely useful data. Also, at no time have you given us any indication whatsoever as to why you wish to obtain the academic degree for each of the people whom you represent. Other than in determination of starting salaries, educational level is not a factor in our salary administration. Further, listing this information would require a certain amount of clerical effort on our part. Therefore, before going to this effort, we believe it would be appropriate for you to give us some reason as to your need for it beyond the simple statement that you need it to bargain intelligently. Finally, our is, and has been, a rather unique collective bargaining relationship in that it involves a truly professional group. Further, as stated in our Agreement, it is -our desire to conduct this relationship in a manner designed "to promote the professional standing, reputation, and opportunities of the employees represented by the Association." It appears to us that disclosure of the data for which you asked could, in fact, result in the disclosure of information about the individual employee, thus in our view reducing the professional aspect of our relationship and the professional status of the employee. It is our belief that the considerations set forth above warrant your careful review, and we are prepared to discuss these matters with you at your convenience in the near future. Very truly yours, /s/ Frank H. Douma Frank H. Douma, Manager Personnel and Industrial • Relations The March 7, 1967, letter of Respondent illustrates that the parties take a different view as to whether certain data is relevant. This difference in large part seems to stem from an assumption that the present and historical method of bargaining is the framework in which the bargaining must take place and also it reflects the disparate value judgments on technical questions. The general aim here will be to make a determination in line with case authority as to whether or not the data sought is reasonably relevant to the collective-bargaining process Historically, Respondent has had practically full control over all aspects of salary administration and its position is that bargaining should take place based on such a posture. The AIS's basic position at this time is that it wants to know how Respondent's salary, system works, and more about its composition. The salary administration -system was conceived solely by Respondent and has been administered unilaterally by it. Simply stated, the AIS is not now proposing another system but is seeking further enlightenment as to how Respondent fashions and employs its salary administration tools. Respondent's position is that the AIS has the information, or that it is not necessary, or that it is confidential, or that it has waived its right to receive at least some of the data it is seeking. Respondent in July 1967 complied with the request of the AIS and supplied a list unidentified by name of merit ratings and incorporated its obligation to do so in a collective-bargaining agreement. EMERYVILLE RESEARCH CENTER C. The Arguments For and Against the Information Sought As a preliminary observation before the contentions are considered, the implicit premise underlying the position and arguments of the parties is stressed and restated since it is central to the dispute. The salary administration system is entirely the work of Respondent and has been administered solely by it through the years. In seeking informal ion about it, the AIS is for the present acquiescing in Respondent's construction and administration of the system. However, the AIS contends it does not have sufficient information as to the construction and administration of this system to bargain intelligibly. This information would aid the AIS in evaluating the present system initially and perhaps enable it to suggest changes or substitutions if indicated. The lengthy and ably prepared briefs of the parties, as well as much of the testimony, reflect arguments in detail about the adequacy of data supplied such as grids, histograms, renormalized merit ratings and other forms which were designed to provide information and at the same time to conceal the identity of the individuals whose salaries and ratings form the basis of the data. Thus the arguments of the parties on the value of data clash on issues of opinion and value judgments rather than on issues of fact. In effect, Respondent is saying that over the years we have given you everything you need and if you will tell us specifically the need for further data we will try to present it in a form designed by us as we have done in the past. As noted, the AIS is no longer satisfied with this approach. Its primary reason given to Respondent was that it needed the data to bargain intelligibly. During the hearing further reasons were advanced which apparently were not stated to Respondent in negotiations. Although they will be noted, they are not regarded as substantial evidence bearing on the issue as to whether Respondent unlawfully refused to bargain prior to the hearing. 1. The Guide Curves Respondent contends negotiations with the AIS have nothing to do with the guide curves. In considering this question, it is clear that the AIS does not presently have a satisfactory method of knowing with reasonable certainty how the guide curves are constructed or precisely what they are. Despite the fact that in June of 1965 Respondent gave the AIS a document entitled "Professional Salary Administration," according to the testimony of Frank Douma, the then chief negotiator for Respondent, it took an hour and a half for Douma to describe the system by which Respondent derives the guide curves from the raw data it obtains. It is evident that not only a written explanation would add certainty to the understanding of the negotiators who heard the oral explanation and would facilitate bargaining on an intelligible basis at the time the oral explanation was given, but that it would be a practical necessity for successor AIS negotiators to intelligibly deal with questions concerning the guide curves Respondent also argues that the AIS does not need the guide curves because to give the AIS the guide curves would probably destroy the salary administration system as Respondent fears it could not obtain the same data from which the guide curves are constructed from competitors if the curves were given to the AIS. With respect to the need of the AIS for the guide curves, there is more than an arguable basis for their 119 necessity . The AIS by contract has a right to bargain for general salary increases which operate to generally raise the salaries indicated at points on the guide curves. Respondent, prior to 1966, excluded some individuals from the general increases by use of criteria of its own formulation. In 1966, instead of giving general increases it increased the salaries and the dollar figures on the guide curves by use of the system called the competitive adder. The difference between this and general salary increases seems somewhat elusive. Both have the effect of increasing the salary structure by an overall percentage Both are based on salaries that competitors of Respondent pay or will pay. The testimony suggests that perhaps the general increase effected by the competitive adder places more emphasis on the probable trend of salaries than on a comparison of current competitive salaries. This , however, seems open to question as the general percentage increases under the competitive adder and appears approximately the same as the salary increase effected under the name of a general increase. Although the collective -bargaining agreement specifically provides for bargaining for a general increase , by using the term competitive adder Respondent effected a unilateral general salary increase without bargaining about it with the AIS. Respondent has advised the AIS that with the institution of the competitive adder, it is moving away from granting general increases . Respondent also has informed the AIS that since 1966 general increases are not warranted since competitors have not granted increases warranting a general increase by Respondent. One of Respondent's basic approaches towards salaries is that increases are warranted when competitive salaries are increased . Since the guide curves are constructed from raw data consisting of 6,000 salaries from eleven companies engaged in similar activities, it seems a reasonable proposition that in order to bargain intelligently about general increases and whether or not they should be granted rather than the competitive adder, possession of the guide curves by the AIS would facilitate communicating and illuminate the bargaining sessions. For this purpose alone the guide curves are relevant and should be produced as requested by the AIS. This information relates to salaries paid and there is a presumption of relevance which has not been overcome by supplying partial or similar information in lieu of the guide curves.' Curtiss-Wright Corp., Wright Aeronautical Division v. N.L.R .B., 347 F 2d 61 (C.A. 3); Boston Herald- Traveler Corporation v. N.L.R. B., 223 F.2d 58 (C.A. 1), N.L.R.B. v. Yawman & Erbe Mfg. Co., 187 F.2d 947 (C.A. 2). An approach relating to the obligation of an employer to furnish wage or salary information of unit employees and related data has been restated recently in United Furniture Workers of America, AFL-CIO v. N.L R.B., 388 F.2d 880, 882 (C.A. 4): To constitute good faith bargaining , the Company is required to furnish wage and related information pertaining to employees in the bargaining unit, and such information is presumptively relevant, but where the employer rebuts such relevancy, the Union must by reference to the circumstances of the case, demonstrate more precisely the relevancy of the data it requests. Curtiss-Wright Corp., etc v . N.L.R.B , 347 F.2d 61 (3rd Cir. 1965). 'The proposition that wages and salaries can be read interchangeably seems self-evident when examining case authority on this question. 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This rule as to wage or salary related data also may be stated that a union need not explain relevance except where the inquiry is patently outside the bargaining issue. See N.L.R.B. v. Yawman & Erbe Mfg. Co., supra. A refusal to furnish such information is a violation of the Act. Kroger Co., 163 NLRB 441, enforcement denied 399 F.2d 455 (C.A. 6, 1968). Respondent contends the information sought is not relevant at least partially for the reason Respondent has already furnished such information. As indicated previously, this decision does not purport to pass on the merits of opinions of disputing scientists but is limited to finding what in broad terms is the most plausible position. Thus while noting the items Respondent has given the AIS and which it claims makes the further information sought by the AIS not relevant, no attempt will be made to hypothesize the reaches of use to which information previously received by the AIS might possibly be used in esoteric statistical studies. Since 1948, the AIS has received a list which shows by experience credit every salary paid some unidentified employee and his experience credit. Since 1954, it has also received a list with no names showing median salaries of employees grouped by years since first college degree. Beginning in July 1967, it has commenced receiving a list unidentified by name which, shows by experience credit the salary. of every employee in the unit plus the applicable merit rating. At the time when supervisors were in the same merit rating system, Respondent furnished the AIS information called a list of renormalized merit ratings which did not permit identification either of supervisors or of unit employees. The AIS was also furnished a grid to demonstrate there was no age bias in the salary structure. It was also furnished a histogram to show that unidentified persons were overpaid or underpaid in connection with the question of exclusion from a general increase. The information furnished by Respondent seems susceptible of raising further questions as well as answering in some measure the requests of the AIS. Nothing furnished to the AIS renders the actual guide curves irrelevant. The relevance of the guide curves is pointed up by the following in Boston Herald-Traveler Corporation v. N.L.R.B., supra at 62 (C.A. 1), enfg. 110 NLRB 2097: Although the employers almost uniformly have contested the relevance of the requested data, the Board and the courts have found relevance in generalized avowals by the charging union that the information was necessary for the purpose of policing existing contractual provisions which made merit increases a matter for bargaining between the employer and individual employees or for the purpose of negotiating with respect to minimum wage rates or merit increase mechanisms. It has apparently been considered enough to determine that the union might have found it necessary or desirable to make demands for changes in existing systems, should evidence of inequities have been developed upon review of the data which management refused to furnish. In Yawman & Erbe Mfg. Co., 187 F.2d 947, 949 (C.A. 2), the court states the rule to the same effect. Since the employer has an affirmative statutory duty to supply relevant wage data, his refusal to do so is not justified by the Union's failure initially to show the relevance of the requested information. The rule governing disclosure of data of this kind is not unlike that prevailing in discovery procedures under modern codes. There the information must be disclosed unless it plainly appears irrelevant. Any less lenient rule in labor disputes would greatly hamper the bargaining process, for it is virtually impossible to tell in advance whether the requested data will be relevant except in those infrequent instances in which the inquiry is patently outside the bargaining issue. [Emphasis supplied.] Finally, the practice here whereby Respondent in discussing salaries with industrial employees and indicates their positions on the guide curves does not satisfy the obligation to furnish relevant data to the AIS, the statutory bargaining representative, aside from the fact that information furnished in such fragmented form would be useless to AIS in bargaining. Respondent also advances as a reason for not supplying the guide curves that to do so would destroy the salary administration system since the curves are a necessary part of such a system. Frank Douma who became manager of personnel and industrial relations for Respondent in 1964 testified that there "isn't any question in my mind that some of the participants in the survey would cease to participate if we gave the guide curves to the A.I.S., and that, of course, would in effect destroy the survey, . and with it the salary system" Douma's opinion is entitled to respect since he was personally concerned with exchanging data with the other companies. However, even if disclosure had the effect foreseen by Douma, it does not present an adequate justification for withholding the guide curves. Since they are related to salaries, if they are to be used by Respondent, the AIS is entitled to them as a matter of law. See Employers' Association of Building Metal Fabricators, 149 NLRB 382; Korn Industries, Inc., 161 NLRB 866, in addition to cases cited above giving a union a right to data relating to salaries as a necessary part of the bargaining process. However, the AIS does not believe the disclosure of the guide curves would cut off the source of supply of the raw data. It points out that 6,000 salaries are received from eleven companies and these salaries are used by Respondent with its own adjustments to construct curves so that it would be impossible by using the curves to tell which company was paying what salary or to whom. This contention makes sense and the apprehension about destroying confidentiality by giving the guide curves to the AIS appears logically unfounded. It also appears that Respondent has not put its position to the test by finding which, if any, companies would object to Respondent giving the guide curves to the AIS. In view of the above considerations, it is found that the request of the AIS for current guide curves is legally relevant and necessary for collective-bargaining purposes and no adequate reason exists why they should not be made available to AIS. 2. Academic Degrees Guide Curves and Merit Ratings for Past Five Years Commencing in July 1967, Respondent has complied with the request of the AIS to supply it with current merit ratings. The AIS in its January 30, 1967, letter and thereafter insists on the necessity of receiving academic degrees listed with the merit rating. The AIS orally amended this request to also have listed the field in which the unidentified individual was working as well as his degree. Degrees affect an employee's starting salary by giving him an experience credit, which in turn affects his salary The AIS has a legitimate interest from the EMERYVILLE RESEARCH CENTER standpoint of a bargaining representative in ascertaining the part this plays in affecting the salaries of the people it represents, and perhaps to use them for other purposes. The question of degrees is complicated by the oral supplement of the AIS's spokesman to the degree data requested in the letter of January 30, 1967. The written request was amended to also include the scientific field in which the person with the degree was working. The relevance of this information as well as the request of the AIS for guide curves and merit ratings for the years preceding January 1, 1967, is not as clear as the guide curves, merit ratings and the degrees which would directly and currently relate to the salary structure. The reason the AIS advances for obtaining the merit ratings and guide curves for five additional years is that these are needed to be acquainted with trends and hence hopefully to be in a position to formulate positions and to bargain more intelligently. Similarly information showing that an individual with a degree in one field was working in another field would be relevant to the AIS in assessing whether this factor was properly considered in connection with the individual's salary, or relating to questions that might arise affecting transfer of an employee. These findings are based on the premise that the information requested relates to salary data and requires disclosure unless plainly irrelevant. N.L.R.B. v. Yawman & Erbe Mfg. Co., and Boston Herald-Traveler Corporation v. N.L.R.B., supra. The AIS according to the tests of these cases is entitled to the information on the basis that it may want to use it as a basis to suggest improvements in the salary system or to propose changes to remove inequities if the furnished information reveals them. In Yawman & Erbe, supra, the Union requested wage information for years in addition to current and preceding year. This was held not proper data by the Board in 89 NLRB 881 on the basis that the record did not show the information to be relevant. The wage data in Yawman & Erbe was simple wage rates and no suggestions of relevancy for it was indicated by the record. The salary questions in this case at hand are extremely sophisticated and the claim of the AIS that the information for previous years is necessary to show trends was not refuted. Hence, since the record furnishes some basis for relevance for the years 1962 through 1965, the scales are tipped enough in favor of a finding that such data should be given to the AIS with a qualification in connection with the merit ratings. Respondent changed its merit rating system in 1967 to exclude supervisors. In 1964, Respondent furnished the AIS "re normalized" merit ratings excluding supervisors. This information proved of no value in negotiations. When adverted to by the AIS, the Respondent characterized the renormalized merit ratings as "funny numbers." Thus, it seems possible that the merit rating data for the years 1962 through 1965, excluding supervisors, might not be useful. However, the question is presented as to why could not Respondent supply the merit ratings of the bargaining group whatever they might be and exclude the supervisors which it would ordinarily be entitled to do. Since "renormalized" merit ratings would likely be different than the actual merit ratings with the omission of the supervisors and since the record does not establish these could not be used by the AIS, in the circumstances of this record, it is found on balance the AIS is not entitled to the merit ratings of supervisory personnel, but to the merit ratings of unit members for previous years. 121 Respondent contends a basis for not giving the academic degree information is that it would reduce the anonymity of members of the unit with respect to the salary received. Respondent is not entitled to claim protection of bargaining unit members as a basis for withholding information it is otherwise obliged to furnish. N.L R.B. v. The Item Company, 220 F.2d 956 (C.A. 5). Respondent also contends that it was willing to give the AIS information in a different form if the AIS could show how it was necessary. Respondent contends that because of the historical pattern of Respondent unilaterally determining salaries, the AIS has no need for data except that relating to general increases. Indeed it seems to be Respondent's position that since it no longer calls the across the board salary increases it grants general increases but competitive adders, the AIS has less need for the information it requested in its letter of January 30, 1967. This apparently assumes a premise that is not necessarily true. This premise is that the historical system of bargaining which sanctioned Respondent's unilateral construction and administration of the salary system must necessarily continue. The heart of this matter, it seems, is that the AIS requires the information requested to determine initially whether it regards Respondent's salary system as equitable and desirable and in addition to use the information as a basis to suggest change or revision if the AIS chooses to do so in the course of collective bargaining. In the letter of January 30, 1967, the AIS also requested a written explanation of the merit rating system. The record reflects in essence a merit rating is given after a process in which management participates in evaluating an employee up to the Board of Directors. Whether or not there is confusion in the minds of the AIS negotiators as a result of the description so given cannot be determined, or whether it is a full description. At any rate, no harm could ensue to Respondent by setting forth the description of the system in writing. It would also tend to avoid misunderstanding in the future to have an accurate written description of the system by which merit ratings are fashioned. Additional Defenses Advanced by Respondent In addition to the positions of Respondent already noted, it advances further reasons for not complying with the requests of the AIS contained in the letter of January 30, 1967. Respondent correctly points out that in the past several years the course of bargaining was such that if the AIS asked for information the Respondent would inquire as to the reason and if the Respondent was so inclined it would prepare some information in a form of its choosing and give it to the AIS. In the case at hand in connection with the letter of January 30, 1967, Respondent asked the AIS why it needed the data. The essence of the response was that the AIS needed the requested information to bargain more intelligibly. Respondent did not regard this as a sufficient reason and indicated it would prepare something (perhaps in the nature of a grid or a histogram or renormalized data) if the AIS could explain why it needed such data. At this point, the impasse occurred as the AIS continued in pressing for the data requested in its letter of January 30, 1967. Since all this data related directly to the construction and administration of the salary system, it is clear that the ingredients of such system would have to be within the cognizance of the AIS in order for it to intelligently bargain about it even to the extent of 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD suggesting an abandonment of the entire system if on disclosure of its components it did not seem satisfactory to the AIS. Hence, it is no defense for Respondent to say that the AIS should have continued to bargain as it did in the past when such a method resulted in the continuing ignorance of the AIS as to the construction and workings of the salary administration system. Respondent advances arguments that the AIS has waived its right to obtain the data requested which is the subject of this proceeding. It points out that the AIS executed a collective-bargaining agreement on January 30, 1967, without a right to receive guide curves being incorporated in such agreement and immediately after this handed Respondent its demand letter of January 30, 1967. Respondent's negotiators did not regard these events as foreclosing continuing discussion of salary related data. It continued to negotiate concerning the demands of January 30, 1967, in writing and by meetings and acceded in part to the demand of the AIS with respect to supplying merit rating data. This action is not compatible with a legal claim of waiver made a year later during litigation of the controversy. On the question of whether the acts of previous AIS negotiators in executing agreements after abandoning requests for salary data operate to preclude later negotiators from obtaining such information, it would appear that previous negotiators would have to explicitly waive the right to such information, if relevant at a future date. Timken Roller Bearing Company v. N.L.R B, 325 F.2d 746 (C.A. 6); N.L.R.B. v. Otis Elevator Co., 208 F.2d 176 (C.A 2). This was not done. On the question of waiver relating to the right to obtain current or previous information, the following language is pertinent in N.L R.B. v. Yawman & Erbe Mfg. Co., supra: Nor is our determination that the information was relevant affected by the subsequent execution of a contract without disclosure. The most that can be inferred from the Union's action is that the advantages of a contract in hand outweigh those which the Union might obtain when all relevant information would be available to it. Respondent relies on International News Service Division, 113 NLRB 1067 as authority indicating it has a legal defense of a waiver in this case. It is not regarded in point as the conduct of negotiations in the past as well as during the events leading to this case establishes that the execution of an agreement does not operate to inhibit further discussion of matters discussed but not included in the agreement and this is precisely what occurred in the events leading to this controversy. Prior to the execution of the January 30, 1967, agreement, the AIS had requested some of the data included in the letter of January 30, 1967, which was not incorporated in the agreement. Immediately and for several months thereafter the data claimable as being waived was included in the discussion between the parties. This post-agreement discussion is a vital distinguishing characteristic between International News and the present case, as it did not occur in International News. The Appropriate Unit At all times material herein the AIS was the majority representative of the employees in the following described appropriate unit, appropriate for collective bargaining: All professional employees on the payroll of Respondent in the classifications of Chemist, Junior Chemist, Physicist, Junior Physicist, Engineer, Junior Engineer, Chemical Abstractor, Assistant Librarian, Mathematician, Junior Mathematician, Metallurgist, and Junior Metallurgist, excluding all other employees, members of management, guards and supervisors as defined in the Act. Concluding Findings When first exposed to the evidence in this case and as it unfolded, there was a reaction that something was unusual about the position of the AIS. It stemmed from a concept that if the AIS did not want to use the salary system of Respondent it should present its own and not haggle about how and what aspects Respondent's should be revealed to it by Respondent. However, on further consideration, this approach, not necessarily keyed to any legal theory, appeared as possibly destructive of a long-tried system and the approach of the AIS and the Respondent suggests that the salary system developed by Respondent in all likelihood is peculiarly adapted to the needs of the parties, and is a constructive and rational approach to the collective-bargaining problem involved. As indicated above, it is the writer's view the collective bargaining of the parties and perhaps the salary system in addition would be improved if the AIS had further information. The closing paragraph of General Counsel's brief seems to be a reasonably accurate summary of the present position of the AIS, reflecting its need for additional information: Thus, in the instant case the Association is groping in the dark as to the Respondent's basis for granting or withholding general increases. The Respondent has stated on what it bases its salary determinations, but refuses to divulge that information to the Association. The Association is also, as a result of this denial of information , in an untenably ignorant position with regard to policing its contract and processing grievances for the people it has a duty to represent. The Association has waited some fifteen years to insist upon its rights. It is now mature enough to insist upon its statutory right to equal information. It is entitled to receive that information. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the business operations of Respondent as described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. The AIS is a labor organization and Respondent is an employer within the meaning of the Act. 2. The AIS is the majority representative and exclusive representative of the employees in the bargaining unit described in section III, above. 3. Respondent has committed and is committing an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act by its refusal to comply with the request of the AIS to furnish the AIS: (a) A written explanation of salary guide curves used by Respondent in fixing salaries, and copies of the current guide curves and the guide curves prepared for the five EMERYVILLE RESEARCH CENTER previous years (b) Merit ratings for employees in the bargaining unit for January 1, July 1, each year for the period 1962 through 1966.5 (c) A written explanation of Respondent's merit rating system, (d) A list unidentified by name showing individual salaries, merit ratings, academic degrees, principal type of scientific or related work engaged in since previous listing as of January I and July 1967 and thereafter on the anniversary of such dates. This list shall be composed of the employees in the bargaining unit THE REMEDY It having been found that Respondent violated the Act by its failure and refusal to supply the AIS with information relevant to the Union's obligation to represent Respondent's employees in the appropriate bargaining unit, the following order, which is necessary to effectuate the policies of the Act, is recommended. 123 (c) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith.' 'In the event that this Recommended Order be 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 be 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 " 'In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read. "Notify said Regional Director, in writing, within 10 days from the date of this Order , what steps the Respondent has taken to comply therewith." APPENDIX NOTICE TO ALL EMPLOYEES RECOMMENDED ORDER Upon the basis of the entire record, findings of fact and conclusions of law, Respondent, its officers, agents, successors, and assigns, shall. 1. Cease and desist from: (a) Refusing to bargain collectively with the AIS as the exclusive collective-bargaining representative of its employees in the unit represented by the AIS by refusing to furnish to the AIS: A written explanation of salary guide curves used by Respondent in fixing salaries, and copies of current guide curves and copies of guide curves prepared for the five previous years. Merit ratings for employees in the bargaining unit for January 1 and July 1 each year for the period 1962 through 1966. A written explanation of Respondent's merit rating system. A list unidentified by name showing individual salaries of employees in the bargaining unit, merit ratings, academic degrees, principal type of scientific or related work engaged in since preparation of previous lists as of January 1, 1967, and July 1, 1967, and thereafter on the anniversary of such dates. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Furnish to the AIS upon request the information and data described in paragraph 1(a) above (b) Post at its plant in Emeryville, California, copies of the attached notice marked "Appendix."6 Copies of said notice to be furnished by the Regional Director for Region 20, shall, after being signed by a representative of Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter in conspicuous places, including places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced or covered by any other material. 'Conclusions of Law and RECOMMENDED ORDER do not apply to any data already supplied by Respondent to the AIS 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 NOT refuse to bargain collectively with the Association of Industrial Scientists as the exclusive bargaining representative of our employees in an appropriate bargaining unit by refusing to furnish it or its agents the following: A written explanation of salary guide curves used by Respondent in fixing salaries , and copies of current guide curves and copies of guide curves for the five previous years. Merit ratings for employees in the bargaining unit for January 1 and July 1 each year for the period 1962 through 1966. A written explanation of the Company's merit rating system. A list unidentified by name of employees in the bargaining unit, showing individual salaries, merit ratings, academic degrees, principal types of scientific or related work engaged in since preparation of previous lists as of January 1, 1967, and July 1, 1967, and thereafter on the anniversary of such dates. EMERYVILLE RESEARCH CENTER, SHELL DEVELOPMENT COMPANY, A DIVISION OF SHELL OIL 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 directly with the Board's Regional Office, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 556-0335.