United States Steel Corp.

444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Universal Atlas Cement Division of United States Steel Corporation and Local 115, United Cement, Lime & Gypsum Workers International Union, AFL-CIO. Case 4-CA-4721 September 17, 1969 DECISION AND ORDER By MEMB1 • RS BROWN, JENKINS, AND ZAGORIA access to payroll cards and payroll records, the Trial Examiner recommended that the Respondent cease and desist from such conduct, but concluded that it was redundant and unnecessary affirmatively to order the Respondent to produce the requested data. We disagree. In our view, it will serve to effectuate the basic policies of the Act affirmatively to direct the Respondent to make available to the Union, upon request, the necessary payroll cards and payroll records, and we shall so order. On April 1, 1969, Trial Examiner Thomas F. Maher issued his Decision in the above-entitled proceeding. finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, 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 Trial Examiner's Decision and a supporting brief The General Counsel filed cross-exceptions to the Trial Examiner's Decision, a brief in support thereof, and a brief in answer to the Respondent's exceptions and brief. Pursuant to the provisions of Section 3(h) of the Act. 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, cross-exceptions and briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner with the following modification: THN RI.MFDY Having found that the Respondent violated Section 8(a)(5) by refusing to grant the Union 'Contrary to our dissenting colleague, we agree with the real Examiner that the information requested by the Union is relevant to a union determination on whether to process further grievances under the principles of the Seitc award As such , the information has potential relevance of the sort described by the Supreme Court in N L R B v Acme Industrial Co . 385 L S 432 The dissent asserts that the Union was engaging in a fishing expedition , apparently because the Union first agreed to have Respondent search the records for situations similar to that underlying the Seitz award,but later requested that union personnel be allowed to make their own study, at union expense , when Respondent reported that pursuant to its search "found no schedule controlled by" the arbitration award however, as the parties had been unable to agree on the meaning or application of the Sciti award (the Employer contending that it had no general application) and as the Employer, following its study, had furnished the Union with a bare conclusion unaccompanied by supporting data, the Union s request for permission to conduct its own study, at its own expense, was reasonable and would not have unduly burdened Respondent. While our dissenting colleague argues that "At no time did the Union document its alleged belief that the results of the Respondent 's starch and analysis were other than factually correct,' the dissent would deny the Union the only available avenue to investigate and establish its contention 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, as modified below, and hereby orders that the Respondent, Universal Atlas Cement Dnision of United States Steel Corporation. Easton, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Add the following as a new paragraph 2(a) to the Trial Examiner's Recommended Order, and reletter the present paragraphs 2(a) and 2(h) accordingly' (a) Upon request, make available to Local 115, United Cement. Lime and Gypsum Workers International Union. AI-L-CIO, all payroll cards and other payroll records setting forth the hours worked by, and compensation paid to employees in the bargaining unit of all the hourly paid employees in Respondent's Northampton plant covered by the contracts between the Respondent and the Union in effect from October 1965 to the date of this decision. 2. Add the following as the first indented paragraph of Appendix B. WE WII.Lcease and desist from refusing to make available to Local 115. United Cement. Lime and Gypsum Workers International Union, AFL-CIO, all payroll cards and other payroll records setting forth the hours worked by, and compensation paid to, employees in the bargaining unit of all the hourly-paid employees in our Northampton plant covered by the contracts between us and the Union in effect from October 1965 to the date of the Board's Decision. MEMBERZAGORIA, dissenting: I find no support in the record to warrant the conclusion of my colleagues that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to accede to the demand that the Union's personnel be allowed to examine the Company's payroll records. This dispute arose as a result of a grievance filed by the Union on behalf of employee Milisfts, which culminated in an arbitration award dated October 6. 1967. The Respondent complied with the arbitrator's decision by paying to Mtlisits the amount specified in the arbitration award. 178 NLRB No. 75 UNIVERSAL ATLAS CEMENT 445 Thereafter, on April 4, 1968, the Union requested that "the Company conduct a search into its records to determine which employees, how often and how many times had suffered the hour-work history, at various times, which would entitle them to any one or more of the premiums on principles set forth [in] the [arbitrator's] award." The Respondent orally agreed to search its records and furnish the Union with the identity of any employees situated similarly to Milisits, and on April 15. 1968, the Respondent assured the Union in writing that the search would be made and that the data compilation would be commenced promptly and pursued with dispatch. On April 21. 1968, after having initiated the search of its records, the Respondent advised Union President Mikisits that the compilation requested by the Union, which would require a search of timecards numbering over 250,000. was not susceptible to analysis by a "computer run," but would require a crosscheck of each day's tirnecard for each employee with the employee's timecard for the previous and following days. On May 28, 1968, in response to the Respondent's announcement to Union President Mikisits of the difficulties involved in the search and compilation, the Union wrote a letter to the Respondent accusing it of having reneged on its April 4 agreement, and threatening to commence litigation unless the data was forthcoming within the next week or two.' In July 1968, in accordance with its commitment to make the search, the Respondent hired three temporary employees who spent 2 weeks reviewing and analyzing the timecards. On August 8, 1968, the Respondent advised the Union in writing that a search of the records of the Northampton plant had been completed and no schedule had been found which was controlled by the Milisits award. In response, on August 30, 1968. the Union advised the Respondent by letter that the Company's position that the records failed to disclose any circumstances controlled by the Milisits award was contrary to indications consistently given to the Union, and demanded for the first time that union personnel be granted access to the payroll records. On September 19, 1968, the Respondent • denied the Union's demand, relying, inter alia , on its compliance with the Union's request of April 4, and the absence of The record in my view does not support the Trial Examiner' s finding that President Mikisits requested perrtussion for access to the Respondent's payroll records on April 21. and that this request was repeated by the Union in its letter of May 28 Mikisits' testimony that he asked to "look" at the cards appears to me to have been merely a casual request to examine a representative number of them, resulting from advice by the Respondent of the difficulties involved in making the search and data compilation, and was not tantamount to a request that the union personnel be permitted access to the records for purposes of making their own analysis and compilation Moreover, there is nothing in the Union's letter of May 28, either express or implied, to warrant the finding that the Union was requesting that its personnel examine the Company's records. On its face the May 28 letter refers specifically to the Union's request and the Respondent's agreement of April 4, 1968, that company personnel would conduct the search and make the necessary information available to the Union. any assertion by the Union of any factual situation controlled by the Milisits award. At the same time, Respondent assured the Union that Company records would be available, as in the past, to provide data relevant and necessary to the processing of a grievance. In the light of the facts as established in the record, I would find that the Respondent adequately fulfilled any requirement it had under the Act. At the U nion 's request. and at a considerable expenditure of time and money, the Respondent conducted a search of its records and advised the Union of the results. Dissatisfied with the results. the Union for the first time asserted the right of its own personnel to conduct a search and analysis of the records, solely on the grounds of the broad naked allegation that opposite facts had been consistently indicated to the Union. At no time did the union document its alleged belief that the results of the Respondent's search and analysis were other than factually correct, or that access by it to the Company's records was necessitated by any grievance, pending or contemplated. The law requires an employer to make available to the bargaining agent data relevant and necessary to the bargaining process, but it does not require access to an employer's records where the only relevance or necessity shown is the off-chance that something untoward may be discovered. The right to necessary information is a precious one and should not be subverted into authorization for fishing or harassment because of disappointment in earlier expectations. TRIAL EXAM INER'S DECISION STATEMENT Of THE CASE THOMAS F. MAHER, Trial Examiner. Upon a charge filed on October 17, 1968. by Local 115, United Cement, Lime & Gypsum Workers International Union, AFL-CIO, herein called the Union, the Regional Director for Region 4 of the National Labor Relations Board, herein called the Board. on December 31, 1968, issued a complaint on behalf of the General Counsel of the Board against Universal Atlas Cement Division of United States Steel Corporation, Respondent herein, alleging violations of Section 8(a)(I) and (5) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq ), herein called the Act. In its duly filed Answer the Respondent, while admitting certain allegations of the complaint, denied the commission of any unfair labor practice. Pursuant to notice a trial was held before me in Easton, Pennsylvania. on February 10, 1969, where all parties were present, represented by counsel, and afforded full opportunity to be heard, to present oral argument. and to file briefs with me Briefs were filed on March 12, 1969. Upon consideration of the entire record, including the briefs of the parties, and specifically upon by observation of the witnesses, 1 make the following- 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDiN(,s OF FACT AND CONCLLSIONS OF LAW 1. I IIE BUSINESS 01 THI' Rl: SPONDEN I The Respondent is a Delaware corporation with its principal office in Pittsburgh, Pennsylvania, and a plant in Northampton, Pennsylvania, where it is engaged in the manufacture and sale of cement and related products During the most recent annual period, in the course and conduct of its business operations, it had gross sales in excess of $500.000 of which in excess of $50,000 was derived from sales and shipments made directly to customers located outside the Commonwealth of Pennsylvania: and it purchased and received at its Northampton, Pennsylvania, plant goods valued in excess of $50,000 shipped to it from points outside the Commonwealth of Pennsylvania Upon the foregoing agreed upon facts I conclude and find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. IT. TiIF LABOR ORGANILATiON INVOLVED It is admitted and I accordingly conclude and line that Local 115, United Cement, Lime & Gypsum Workers International Union, AFL-CIO, is a labor organiLation within the meaning of Section 2(5) of the Act. Ill. THE ISSUFS The obligation of an employer to supply payroll data to a union for the purpose of determining whether or not there is a basis for tiling a grievance under the contract. IV. THE LNFAIR LABOR PRAC fiti-s A. Introduction Since 1940 the Union has been the certi6ied bargaining representative of the employees involved in this proceeding in a bargaining unit stipulated among the parties to he as follows. All of the hourly paid employees in the Northampton plant of the Respondent, excluding clerical, salaried, watchmen and supervisory employees. During this period collective-bargaining agreements have been in force between Respondent and the Union. the most recent of these being one executed on October 20, 1965, which expired on April 26, 1967. and a successor agreement due to expire on April 30, 1969 Pursuant to the terms of the agreement, spelled out in detail hereafter. a grievance was instituted on behalf of Employee Joseph Stephen Milisits' involving the application of certain provisions of the contract to the work schedule and pay of Milisits as it was affected by his working of an unusually extended number of hours. Not to be contused with Employee Stephen Joseph Mikisrts, the president of Local 115 and an active protagonist in this matter, or with Peter Seitz, an arbitrator whose award is the basis of it The Milisits grievance culminated in an arbitration award rendered by Arbitrator Peter Seitz on October 6, 1967, which forms the basis of this controversy Because of its significance to the issue presented here it is reproduced as Appendix A to this Decision. B The Substance of the M ili.sits grievance As detailed more specifically in the Seitz award (infra), Employee Milisits, on November 2. 1966. worked his regular shift from 7 30 a.m to 4 p.m., less a lunch period, for a total of 8 hours After returning home he was called out at 10 p m and worked continuously thereafter, excluding the lunch period, through his regular shift on November 3, until 4 p m., for a total of 17 1/2 additional actual working hours. In u)to Milisits actually worked 25 1/2 hours from 7.30 a.m . November 2 to 4 p.m., November 3. By virtue of the applicability of certain clauses of the contract which relate to the calculation of overtime and call-out pay and which involves certain duplications, the total number of hours was in dispute; the Respondent claiming that Milisits was entitled to pay for 34 3/4 hours of work, the Union 49 3/4 hours of work. A reading of the Seitz award (infra) discloses an intricate solution to this dispute which includes "call-out" pay for a minimum of four hours at time and a half, without reference to additional payment to he made for the same hours worked - the theory of the arbitrator being that this constituted an additional duplicate entitlement for the inconvenience caused the employee by being called from his home to the plant for work outside of his regular shift hours. Additionally. where, as here, Milisits worked almost uninterruptedly for an excess of 24 hours, other provisions of the contract provide for the computation of time and a half at one point, double time at a subsequent point, as well as additional instances of duplication. all of which were controlled by the limitations and directives placed upon the computations by the several applicable sections of the contract. Suffice it to say that the method of computation was a complicated one, involving in some instances duplicate amounts of money for the same hours of work This, and the conflicting interpretations. were noted by the arbitrator whose expertise in such matters is readily evident from a reading of his decision. Alter outlining the hours worked by Milisits, relating these working hours to the applicable contract provisions. and making his computations (with full reasons therefor) he arrived at the conclusion that for the period in question Milisits was entitled to pay for a total of 48 1/2 hours, 13 3/4 hours more than that claimed by the Respondent and I 1/2 hours less than claimed by the Union. In compliance with the requirements of the arbitrator's award Milisits was paid for the specified hours A summarization of the compilation of Milisits entitlement follows. UNIVERSAL ATLAS CEMENT November 2, 1966 7 30 a.m. 4 00 p.m 10 00 p.m November 3, 1966 2.00 a m. Regular shift, excluding one hall hour lunch, compensated at straight time Non-working time Because this is only 6 hours and employee is entitled to one 8-hour rest period, the difference. 2 hours is comnensated at double time. 8 hours 4 hours 447 Called out on emergency duty. Compensated for 4 hours 6 hours as "call-out" pay, at time and a half. From start of work period at 10 p.m. until 7:30 a m November 3, (the end of a work day) work time is "in excess of eight hours in any work day This 9 1/2 hours is compensated at time and a half After the twelfth hour of work in any work day there is an entitlement for the excess number of hours, compensated at double time Thus, from 2 a.m. to 7.30 p m there are 5 1/2 to be compensated, not at time and a half but at double time, by adding half time computation to previously computed time and a half. 7 30 a m. The regular scheduled shift compensated at straight time 10 00 a.m. 4 00 p.m Any work in excess of 12 consecutive hours of work, regardless of workday, here 6 hours (less 1/2 hour lunch), compensated at double time End of regular shift Total hours compensated C. The Request and Refusal of Information Understandably, the Respondent was not completely satisfied with the outcome of the Milisits case, particularly as it m%olved substantial duplication of benefits. Therefore, according to Respondent's then Supervisor of Personnel Services Richard T. Thomas, it initially rejected the Union's contention that the Seitz formula should apply to any other employee in the bargaining unit who had worked under a situation similar to Milisits The situation appears to have crystalized in the months following the issuance of the award Thus, on April 4, 1968. in a conversation between the Union's counsel, Bernard N. Katz, and Respondent's Manager of Labor Relations, R R. Furlong. Attorney Kati "requested of the company that the company conduct a search into its records to determine which employees, how often and how many times had suffered the hour-work history, at various times, which would entitle them to any one or more of the premiums on principles set forth the Seiti award. Furlong testified ait the hearing that on behalf of Respondent he agreed to "look at our records in an effort to determine whether or not you could even identify people who were similarly situated to Mr Milisits," and if such were found to give that information to the Union. An exchange of correspondence between the Company and Union on this subject natter followed the April 4 conversation Thus on April 5 Katz wrote Furlong expressing the need for a prompt calculation of the specific benefits due under the terms of the Seitz award in 14 1/4 hours 2 3/4 hours 2 1 /2 hours I1 hours 48 1 /2 hours terms of money amounts and individuals working in situations which arose since the time the Mikisits grievance was instituted. In closing Katz requested the Company's prompt attention to the computation of the data from the records. By reply of April 15 Furlong assured Katz that "the data compilation which we agreed to undertake following our discussion on April 4 will be commenced promptly and pursued with dispatch." Thereafter on April 21, Respondent's Richard I. Thomas visited with Local President Mikisits at his work place and in the course of their ensuing conversation discussed the compilation of the information requested by the Union. Thomas testified that he informed President Mikisits that it was a tremendous task, bordering upon the impossible. He then brought Mikisits to the payroll records office and showed him the filed timecards numbering over 250,000 He also showed him data compiled on what was referred to as a "computer run." An inspection of this type compilation introduced into the record substantiates the Union's and Company's statement that it was not adequate to provide the necessary work-hour information. Thomas correctly analysed the iob as one requiring a cross-check of each day's timecard of a given employee with his card for the previous and the following day; and in this regard he again impressed upon Mikitis the difficulty involved. Despite the apparent insurmountability ' The credited testimony of Katz, corroborated by Supervisor of Personnel Sersic.es Richard F Thomas 448 DECISIONS O F NATIONAL LABOR RELATIONS BOAR D of the task it was turned over to temporary help, Kelly Girls, and a check of all the cards was thereafter accomplished. Thomas testified that up to this time no representative of the Union had requested that these cards be made available for its compilation nor was such an offer made to it by the Company. Mikisits, on the other hand, testified that he did ask to look at the cards on the occasion of his visit to the office with Thomas but was only shown the uninformative "computer runs." I am not disposed to accept Thomas' testimony on this matter. On May 28, Attorney Katz wrote Furlong on the subject and, referring to the availability of the data, suggested that Thomas was taking a position contrary to an earlier agreement to make the data available. He also mentioned Mikisits' proposed use of foremen's records for the purpose. On this state of the documented record I reject Thomas' testimony that the Union had not asked that payroll cards be made available and rely upon Mikisits' statement that he had so requested. In any event, and irrespective of President Mikisits' request. Katz, by his letter of May 28 to Furlong commented upon the failure of the Company's local personnel to make the necessary information available and requested that the data be forthcoming within the next week or two. The checking of the timecards was performed by the Company during July by the temporary staff of Kelly Girls and the report of the search was made to the Union in August in a one sentence letter under the signature of J T. Bartley, the successor to Furlong, as follows. We have completed our search of the Northampton Plant records and have found no schedule controlled by the award in UAC-N66-1 [the Seitz award]. Katz' reply of August 30 in behalf of the Union took issue with the Company, thus, We do not understand the company position that the records did not disclose any circumstances in any way falling into the principles of the Seitz award. Just the contrary has been indicated to us consistently. At this juncture. it is necessary, therefore, to have arrangements made for union personnel to review the pay records available Union President Mikisits will shortly take this up with the appropriate company official at the Northampton plant and we assume he will be given complete cooperation in reviewing the records. [Emphasis .supplied.) Mikisits never did take this matter up with the Company for the reason that he was foreclosed from doing so by Bartley's September 19 reply to Katz' August 30 request in behalf of the Union. Thus Bartley stated in relevant part: The following is in response to your letter dated August 30, 1968. The Company is aware that the Union has not been completely satisfied with the manner in which the award in the subject grievance has been implemented and has repeatedly advised the Union that no appropriate challenge by the Union was foreclosed or expanded by virtue of the Company's position. At the same time, the Company has earnestly tried to arrange for negotiations with the Union's representatives in an effort to finally resolve any and all problems with respect to Grievance UAC-N66-I In fact, as late as August 23, 1968, during a Step 3 Meeting at Northampton , I advised the Grievance Committee that I was willing to sit down with them in an attempt to lay UAC-N66-I to rest for once and for all. My offer to sit down and meet with the designated representative of the Union at a time and place mutually agreeable remains open . In the meantime, let me again state the Company's position that the award in Grievance UAC-N66- 1 has been completely and properly implemented. At this time, we find no reasonable basis spelled out for your request that payroll records be made accessible to the Union on a broad-stroke, random-access exploration. To the extend (sic) that Company records are the only source of information available to provide data relevant, and, necessary to the processing of a grievance , those records will be available to the Union as in the past. Your `demand' that the parties ` again' proceed to arbitration really assumes the point in issue. Unless you advise us. with some particularity , of a factual situation controlled by N66-1, or spell our how we have failed to implement the award in N66-1. there is nothing between us on this subject to arbitrate. We believe that a charge of failure to implement would properly be instituted by a grievance. Since we have fully paid the computation spelled out by Arbitrator Seitz in N66-1, there seems to be no problem between us there. If your allegation, on the other hand, really amounts to an assertion that N66-1 is a class grievance, then it seems incumbent on you to advise us which other employees are involved. To the extent that this might be revealed in the records, we have employed outside help and pursued our tiles and find no cases controlled by N66-1 No employee has advised us through his Grievance Committeeman that he has worked a schedule controlled by N66-1. It is not our intention to invite problems which do not now exist Since we have made every reasonable effort to satisfy the Union on this case, we propose to conclude the matter on the basis of this letter. The record does not indicate that you have presented any substantive matter beyond the grievance in N66-1 which requires adjustment. Our position on this has been clear through our entire correspondence. and we have always acknowledged that you could pursue your remedies if you had serious disagreement. Unless there is some set of facts on which a new complaint might be bottomed, we suggest the files be closed on this matter. [Emphasis supplied.] On September 23, Katz repeated the Union's request, stating to Bartley, in part: Accordingly. would you please regard this letter as the appropriate demand upon the company to make available to the union its time-payroll records and any other records which would show hours worked, nature of the work, e.g., call out, overtime, etc.. and pay received It is necessary in view of the nature of' the problem that the records for all employees in the bargaining unit showing this data be made available. Would you please advise me as promptly as possible when we may have representatives of the union appear at the company office for purposes of examining these records. Bartley's rejection of the union request closed the matter insofar as the Respondent was concerned. On October 21 he wrote Katz, as follows. In response to your letter of September 23, 1968. please be advised we find no reasonable basis for your demand that the Northampton Plant payroll records be made available for examination by Local Union representatives. We have repeatedly stated our position that the award in UAC-N66-1 has been fully and properly UNIVERSAL ATLAS CEMENT 449 implemented. Although the Union has not agreed, neither has it sought to present a specific and detailed complaint setting forth its position in the grievance procedure or any other forum which it might deem appropriate. As stated in my letter of September 19, 1968, the Company will continue to make its records available to the Union only to the extent that they contain information relevant and necessary to the investigation and processing of a particular complaint which is not otherwise available to the Union. The Company is not prepared to open its records so that the Union can embark upon a fishing expedition in an attempt to establish specific grievances. I trust that this statement will obviate the need for additional correspondence on this matter. In an off-the-record discussion at the hearing before me in this matter counsel for the Union undertook to obtain from Respondent counsel, Bruce D. Campbell, access to the records in question. Later in the day a colloquy occurred which I deem significant to the issue at hand. It follov<s: TRIAL EXAMINER: I have a question at this point. A review of these cards, individual time cards, an inspection of them, as I understand, was requested of you people here at the time by union's counsel this morning. Am I correct? MR. KATZ: Yes. sir TRIAL EXAMINER And you refused it? VIR CAMPBELL' Yes sir TRIAL EXAMINER. Well, doesn't that bring the whole case up to date? Doesn't that short circuit all this in and out business that you have been talking about herel Have you not this morning here renewed your position'? He says -- he being Mr. Katz --said, "We would like those cards to look at Let us see them." "We" meaning the union. You said. "No " Now doesn't that bring this whole thing right up to date? MR. CAMPBELL: We made this offer and the union turned it down. We have fulfilled our obligation under the Act on that basis. TRiALEKAMIr' LR You mean they are foreclosed from asking again? MR. CAMPBELL: Without a more specific demand than the ones that we have been presented with D. Contentions of the Parties It is Respondent's contention that because the Union's demand for information is not linked to a specific claim or grievance it has no obligation to comply. It further contends that it has not been proven that a proper demand has been made for specific relevant information which it was obligated to provide. Additionally it is contended that because it has been demonstrated that the employees were able to determine from their personal records whether or not they were in fact within the terms of the Seitz award the Company had no further obligation to make its records available: and finally because the chore of collecting the information was an arduous one it would be relieved of any obligations in the matter The General Counsel's position throughout has been that the Union is entitled to payroll records which would enable it to determine which of the employees were entitled to money under the principles and computations in the Milisits case The Union's contention effectively poses the issue herein and may best be stated by quoting the following colloquy in the record MR KATZ. - if I might. The arbitration award, of which General Counsel makes reference, on its face deals with an individual who is named That arbitration award deals with a variety of different situations involving premium pay treatment for that particular individual, and it involves such situations as whether or not for the same hours that this individual is entitled to overtime and call-out time and rest period time. all different premiums involving different amounts of money for the same hours When the arbitrator rendered his award, it was the understanding and position of the charging party that although the award speaks in terms of one person, the principles which flowed from the award, in terms of contract instruction would be principles which would be applicable to all employees in existence who suffered similar situations from the time the original grievance in the arbitration award arose. The company took the position, subsequent to the rendering of the arbitration award, that it would pay the individual grievant, but that it knew of no other situations which you could glean from the face of the award itself which would he regulated from the award. It is the position of the union that there are many other situations. We do not have the time records and we do not have the individuals and we do not have the days. All of these are contained in the company's payroll information. And it is the position of the union that the principals which now from the Seitz award apply to many' - we're not too sure how many - but many employees. between the period, I believe. 1965, when the grievance first arose, and well into the year of 1968. E. Analysts and Conclusions The applicability of the terms of the Seitz award to the pay situations of employees similarly situated to Employee Milisits cannot he open to serious challenge at this point, Labor Relations Manager Bartley having put the matter to rest in his letter of September 19 to Union Attorney Katz. Therein he stated that "if your allegation really amounts to an assertion that the [the Milisits grievance] is a class grievance, then it seems incumbent on you to advise us which other employees are involved." What remains for determination is the manner in which the award is to be implemented. and to what extent. It has long been settled law that unions are entitled to company data that is relevant to the bargaining process and that a failure to provide such data is in violation of the Act.' And the grievance procedure is most certainly an element of the continuing bargaining process.' It is equally well settled that if information which the Union may require to process such grievances meets the standards of relevance and necessity the Company is obligated to make it available to insure the orderly policing and administration of the collective agreement.' Nor is the posture of the grievance a determing factor. Here, for example, there appears to have arisen in the minds of some of Respondent's officials some doubt that other employees shared Milisits' peculiar work hour experience, and on this uncertainty Respondent predicated 'Texaco, Inc v N L R B. 407 F 2d 754 (C A 7). The Fafnir Bearing Co , 147 NLRB 1582, 1585, cnfd 362 1. 2d 116 (C A 2) 'United Steelworkers of America v. Warrior and Gulf Co. 363 U S 574, 581 'The Fafnir Bearing Co , supra 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its reluctance to provide the requested information But it is at this juncture that the purpose of the Information should he clearly understood Thus in the exchange of correspondence and in colloquy at the hearing Attorney Katz of' the Union made it clear that the information was relevant and necessary for the specific purpose of ascertaining whether or not there actually was a basis for a grievance.' This, to be sure, is not the usual character of information being sought The Supreme Court, however, reviewed a similar situation in N L.R.B. v Acme Industrial Co.,' "involving the obligation to furnish information that allows a union to decide whether to process a grievance." There the Board had held the information requested for the purpose of prosecuting grievances was relevant and necessary and had ordered its production in sustaining the Board's position the Court, in language strikingly applicable to the situation created by Respondent's refusal here, noted that when the employer furnishes the requested information, it may appear that no subcontracting or work transfer has occurred, and accordingly, that the grievances filed are without merit. On the other hand, even if it appears that such activities have taken place, an arbitrator might uphold the [employer's] contention that no breach of the agreement occurred because no employees were laid off .. . By the same token it might well be in the instant case that the Union's review of the payroll cards would reveal information that would make either the institution or further prosecution of grievances unwise or unnecessary. But that determination is not (as it was not in Acme) the issue at hand. What is crucial is the right to the information on the basis, as the Court describes it, "that it would be of use to the union In carrying out its statutory duties and responsibilities." Upon the foregoing considerations, therefore, 1 conclude and find that the Union was entitled to have the payroll cards made available to it for the purpose of determining whether an employee whose cards were thus checked would be entitled to compensation in accordance with the terms of the SeitL award Finding as I have that the payroll information requested was necessary and relevant to the determination of whether employees were entitled to compensation under the terms of the Seitz award it still must he established that providing such information would not place an undue burden on the Respondent. In this respect Respondent repeatedly alluded to the large volume of cards involved, 250,000 in number, and the complicated procedure to he followed in checking each employee's total payroll record. This, to be sure, is clerical work involving sorting, checking, and summarizing and may well be tedious and time-consuming. As the Union has already accepted the lob by asking that the cards be made available to it I would deem it burdensome only to the Union and not the Respondent In any event it would appear that the Respondent's employment of temporary help, the Kelly Girls, to satisfy itself concerning the data on the payroll cards and to support Its negative report to the Union (supra) would rebut any suggestion of undue burden Upon the foregoing considerations, therefore, and by comparison with a situation previously considered by the Board where a similar volume of requested materials was not held to constitute an under burden,' I would conclude `Compare, General Electric Company, 173 NLRB No 22, fn 3 '355 U S 432 and find that the production of the payroll data requested by the Union would not place an undue burden upon Respondent Nor is it significant that the information was first requested for the Union president's review but thereafter requested for Attorney Kati, or that the Union president may at one time have failed to report to the proper company officials to review the cards, albeit Respondent's September 19 intervening correspondence (supra) over Bartley's signature suggested that such a visit would have been a useless gesture. The simple fact is that at all times relevant to this case the information was sought by the Union, and the Company refused to provide it. Indeed at the hearing itself the demand was made by Attorney Katz Bargaining is recognized in the law as a continuing process and as the demands made in the course of bargaining impart of the same continuing character, there can be no doubt that the demand survived all conversation and correspondence and that all parties were aware of it at all times Finally It is suggested that because the Union has obtained information from individual employees sufficient to initiate grievances in behalf of each, the payroll cards are not necessary. Quite apart from the obvious fallacy that relying upon some employees' records make an inspection of all records unnecessary, it is clear that self-help on the part of the Lnion does not excuse the Respondent of its obligation in the first instance. Indeed to conclude otherwise would be to dampen the good will and cooperation of any party willing to maintain good relations and avoid litigation. I am not aware of such a premium for wrongdoing. Upon consideration of all of the foregoing, therefore, I am persuaded that nothing about the nature and extent of the Union's request for payroll data nor the existence of other means available to it to obtain the data piece-meal was sufficient excuse for the Respondent's failure to make it available. On the contrary, I am fully persuaded that the payroll cards would disclose employee work situations similar to that of Employee Milisits if such situations existed and they accordingly are the proper subject I'or inspection by the Union. As such relevant and material information has been withheld from the Union by Respondent I find that in the course of bargaining Respondent has demonstrated an element of had faith not consistent with its obligations under the Act and has thereby violated Section 8(a)(5) of the Act To the extent that such conduct interferes with, restrains or coerces employees in the exercise of the statutory rights It thereby violates Section 8(a)(1). V. THE EFi•FCT OF THE UNFAIR i ABOR PRACTICES UPON COMMLRCF The operations of Respondent, described in Section i, above, occurring in connection with the unfair labor practices described in Section IV, 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. 'Tree Fruits Labor Relations Committee , Inc . 121 NLRB 516, 519,526, 531-532 Sc(. also Whiten Machine Works 108 NLRB 1537, Boston Herald-Traveler Corp, 110 NLRB 2097 UNIVERSAL ATLAS CEMENT 4.51 VI THE gEMrr)Y Having found that the Respondent has engaged in certain unfair labor practices. I shall recommend that it cease and desist therefrom and take certain affirmative action which I find will effectuate the policies of the Act. Because of the limited scope of Respondent's refusal to bargain with the Union, and because of the amicable relations of the parties over the past years, and as there is no indication that other unfair labor practices may be anticipated from Respondent's conduct in the past, I shall not recommend that Respondent cease and desist from the commission of other unfair labor practices. In this respect I note the Union's apprehension that Respondent will refuse to abide by the terms of the Seitz award in the event the information obtained should disclose cases where application would be appropriate. To repeat. I am not disposed on this record to anticipate that Respondent will commit further unfair labor practices. F he subject matter of the Seitz award is one of contract obligation Except for the instant unfair labor practice which. in effect, is grounded upon an interpretation of the contract, I am aware of no other current or past contract dispute between the parties. Under such circumstances I shall assume Respondent's continued adherence to the terms of the agreement and reject the Union's request in any event, absent the allegation and proof that Respondent has in fact tailed or refused to apply the terms of the Seitz award to other situations, and in the further absence of authority for the proposition that failure to so apply this specific award would be a violation of the Act, I find no justification for including a reference to its enforcement in my recommended order Finally, as it is implicit in my recommendation requiring Respondent to cease and desist from refusing the requested information that it, in fact, make it available upon request. I find it redundant and unnecessary to affirmatively order Respondent to supply the requested information RECOMMLNDED ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended. I recommend' that Universal Atlas Cement Division of United States Steel Corporation, its officers. agents. successors, and assigns. shall I Cease and desist from failing and refusing, to make available to Local 115, United Cement. Lime and Gypsum Workers International Union. AFL-CIO, upon its request for the same , information described as- All payroll cards and other payroll records setting forth the hours worked by, and compensation paid to employees in the bargaining unit of all of the hourly paid employees in Respondent's Northampton plant covered by the contracts between Respondent and the Union in effect from October 1965 to the date of this decision. 2. Take the following affirmative action which it is found will effectuate the policies of the Act. (a) Post at its plant at Northampton, Pennsylvania, copies of the attached notice marked "Appendix B."10 Copies of the notice to be furnished by the Regional Director for Region 4, after being signed by the 'In the event that this Recommended Order is adopted by the Board, the words "Recommended" shall be deleted from its caption and wherever else it thereafter appears, and for the words "I Recommend" then shall be substituted, "the National Labor Relations Board hereby Orders " Respondent, shall be posted by said Respondent at the place previously designated and be maintained by it for 60 consecutive days thereafter. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by other [materials; and (b) Notify the said Regional Director for Region 4, in writing. within 20 days from the receipt of this Decision, what steps the Respondent has takentocomply herewith" '"In the event that this Recommended Order of the Trial Examiner 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 If the Board ' s Order is enforced by a decree of the United States Court of Appeals, the notice will be further amended by the substitution of the words , "a Decree of the United States Court of Appeals Enforcing an Order, ' for the words, "a Decision and Order " "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the said Regional Director in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX A OPINION and AWARD This case was heard in Allentown, Pennsylvania on November 28, 1966, and January IS, 1967 A conference of counsel and the Arbitrator was held in New York City, New York on September 15, 1967 The grievant worked his regular 7 30 a.m to 4 p.m. shift on November 2, 1966 He was called out at 10 p m. the night of November 2, 1966, and worked continuously (except for a lunch period) through to the end of his regular shift on November 3, 1966, at 4 p.m. The parties are in controversy as to the application of a number of contract provisions in respect of his pay for services on November 2 and 3, 1966. The contract provisions invoked are set forth here for convenient reference- 4r6cle VIII Section 2 .. for all hours worked in excess of eight (8) hours in any workday or forty (40) hours in any workweek, overtime rates shall he one and one-half (1 1/2) times the applicable straight time hourly rate Article VIII Section 3 Payment of overtime rates shall not be duplicated for the same hours worked. Fo the extent that hours are compensated for at overtone rates of time and one-half (1 1/2) or more under one provision of this Agreement they shall not be counted as hours worked in determining overtime under the same or any other provision provided a . . . h. hours worked which are paid for at the overtime rate of time and one-half (1 1/2) shall not be excluded in calculating overtime at the rate of double time (2) pursuant to Article VIII Section 9 4rticle VIII Section 4 Effective May I, 1965. in case of emergency when an employee is called for work during any hours in addition to his regular shift, a minimum of four (4) hours' time shall be paid for such emergency call at the rate of one and one half (1 1/2) times his regular straight time hourly rate Article VIII Section 9 (First Par) Effective May 1. 1965 in the event an employee worked more than twelve (12) hours in his 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD workday he shall be paid for all hours worked in excess of such twelve ( 12) hours at double the straight-Lime hourly rate. After an employee has been engaged in work for twelve ( 12) consecutive hours, he shall be paid for all consecutive hours worked immediately succeeding and in excess of such twelve hours at double the straight time rate In no event shall the two immediately preceding provisions of this Section be applied to the same hours of work ; however, the provision which creates the highest earnings shall apply. (Second Par ) An employee who has worked through his normal shift shall be entitled to one eight (8) consecutne hour off-duty period prior to the start of his next regularly scheduled shift. In cases where overtime work prevents the employee from receiving an eight (8) consecutive hour off-duty period. he shall be paid double the straight-time hourly rate for the difference between the hours in his longest off-duty period and the required eight (8) hours. However, the Company may at its option instruct the employee to report late for his regular workday to allow the employee the above eight (8) consecutive hours off-duty period (In this event, the employee will be paid his regular rate for those hours between the starting time of his regular workday and the time he reports for work.) The Union claims that the application of these provisions to the hours of work described above, requires payment for 49.75 hours of work, the Company. 34.75 hours of work. Discu.ccion One has only to read the provisions in the Agreement invoked by the parties to understand why the several posthearing elucidations of their respective positions by counsel for the parties did not serve to dispel the fog that enveloped the Arbitrator since this dispute was first brought to his attention. It is not the office, function or place of an arbitrator to comment on the draftsmanship of the contract he is asked to interpret. and I shall not do so. I shall only observe that the provisions I have quoted are somewhat complex and present some minor difficulties both in comprehension and in application The following is my analysis of the manner in which the quoted contract provisions apply. 1. November 2, 1966: Regular shift. 7.30 a.m. to 4 p.m. The grievant is entitled to 8 hours pay at straight time. 2. 10 p m November 2 to 7 30 a.m November 3. a. Article VIII, section 4, first paragraph. provides for call-out pay for "hours in addition to his [the employee's] regular shift." For such "emergency call" it is provided that "a minimum of four (4) hours time shall be paid" at time and one half This provision is linked, in Section 4, with the provision for four hours of straight time reporting pay. The reference to "a minimum of four hours' time" at the premium rate of pay means, to me, that if an employee is "called out" for any number of hours less than four, he is entitled to four hours of pay at the time and one half rate; it does not mean that he is entitled to pay at the premium rate for all hours worked subsequent to a call-out up to the start of his next regular shift. Accordingly, the grievant is entitled to four hours of pay at time and one half rate attributable to "call-out" exclusively and the inconvenience entailed in such a procedure departing from his regular schedule-that is to say, calling him from his home to the plant for work outside of his regular shift hours. Thus, the grievant is entitled to four hours (10 p.m. on November 2 to 2 a.m. on November 3) at time and one half rate or 6 hours. b. Article Vill, section 2 provides for time and one half rate "for all hours worked in excess of eight (8) hours in any workday" ' This is the normal "overtime" provision. Accordingly, the grievant is entitled to time and one half for the period worked from 10 p.m November 2 to 7:30 a.m. November 3. a period of 9 1/2 hours, or 14.25 hours of pay. I do not regard the provisions of article Viii, section 3, to forbid "duplication" of these normally considered "overtime" hours and the "call-out" hours provided for in section 4. Section 3 refers to "overtime rates" in its first two sentences "Overtime" in the context of this contract. means time worked immediately before or after the hours of the regular shift. When a man is "called-out" from home he is not, properly considered, compensated for "overtime", but for the inconvenience resulting from faulty scheduling or emergency conditions necessitating work which may not be due to fault attributable to the employer but for which the parties believe the employer should bear the economic burden rather than the employee. Hence, in entitling the grievant to 14 25 hours of pay for "overtime", this is over and above the four hours 10 p m. November 2 to 2 a m. November 3) which were credited for "call-out- pay. c. Article Vill, section 9, first sentence, entitled an employee to double time rate for hours worked in excess of 12 "in his workday " The grievant, following work on his regular shift on November 2 started his twelfth hour of work in his workday (which started at 7.30 a.m. on November 2) at 2 a.m. on November 3 From 2 a.m. until 7.30 a.m. (both on November 3) is a span of 5 1/2 hours. The number of straight-time hours for which he is entitled to be credited is 2.75 hours.' d. The second paragraph in article V ill, section 9, provides for premium pay for an employee who, because of overtime work, has not enjoyed an eight consecutive hour off-duty period prior to the start of his next regularly scheduled shift. He is to be compensated for this circumstance by "double the straight-time hourly rate for the difference between the hours in his longest off-duty period and the required eight (8) hours." In the case of this grievant, there were six hours (from 4 to 10 p.m ) in his off-duty period between his regular shifts. Eight hours (the required rest-period time) minus six hours (the rest-period time afforded) equals two hours at double time or 4 hours. 3. 10 p.m November 2 to 4 p.m. November 3- a. Article Viil, section 9, paragraph I (second sentence) provides that for hours worked in excess of twelve consecutive hours (without regard to work day as provided in the first sentence), an employee shall be compensated at the double time rate. This grievant's twelve consecutive hours of work started at 10 p.m. on November 2 and terminated at 10 a.m. on November 3 during his regular shift. He continued to work his shift until 4 p.m. Eliminating one-half hour for lunch, this comes to 5 1/2 hours of work in excess of 12 consecutive hours of work. Five and one-half hours of work at double time equals l1 hours. There is no problem here of duplicating hours counted for "normal" overtime because of the proviso in article VII, section 3. b. 'In the case of this grievant, 7 30 a m to 7 30 a in, (article VIII, section 1) 'Or half time the regular rate, which, added to other payments , provides the double time required by section 9. UNIVERSAL, ATLAS CEMENT The third paragraph of article VIII, Section 9, first paragraph provides In no event shall the two immediately preceding provisions of this Section be applied to the same hours of work; however, the provision which creates the highest earnings shall be applied [Emphasis supplied.] The question arises whether this provision forbids "duplication" of premium pay to this grievant under the first and the second sentence. I find that it does not. This conclusion results from the following analysis 1. Hours counted to determine if grievant is eligible for premium paY under first sentence November 2 7 30 a m to 4 pin. and 10 p m. to midnight November 3- Midnight to 2 a.m. 2. Hours counted to determine if grievant is eligible for premium under second sentence: November 2. 10 p m. to midnight November 3 Midnight to 10 a m. 3. Hours for which double time is paid under first sentence November 3: 2. a.m. to 7:30 a.m 4. Hours for which double time is paid under second sentence. November 3 10 am to 4 p m. (less one-hall hour lunch) It will be seen that some of the same hours of work have been considered in determining whether the grievant qualifies for the double time pay in each case. However, the grievant is being paid double time, in each case, in respect of work during entirely' different hours. Under the first sentence the double time payments terminate at the beginning of the new workday on November 3 at 7.30 a.m. Under the second sentence the double time payments commence on November 3 at 10 a.m and run to the end of the regular shift It appears to me that the words "be applied" refer to a prohibition against paving double time under the first and the second sentences for the same hours There is no such payment here. This conclusion is fortified by the last clause in this first paragraph prohibiting "duplication". The singular and inartistic word "applied" appears here as the last word in the paragraph as it also does in the first clause of the third sentence of the first paragraph of Section 9 When the parties said that the provision which creates the highest earnings shall he applied [Emphasis supplied.] clearly, they meant that the provision (or sentence) which creates the highest earnings shall be paid. The word "applied" here makes no sense if it be read to refer to hours counted or computed to determine eligibility or qualttication for the premium payment. Accordingly. I 453 find no prohibition against the payment of double time for both (a) hour, worked in excess of 12 in this grievant's workday, and (h) hours which this grievant worked in excess of 12 consecutive hours b. The grievant worked his regular shift from 7 30 a m. to 4 p.m. on November 3 For this period he is entitled to 2 50 hours for the period 7 30 to 10 a m The grievant has already been credited with double time for the hours 10 a.m. to 4 p.m. under article VIII, section 9, second sentence The hours of regular rate of pay to which the grievant is entitled for the period 7:30 a.m on November 2 to 4 p.m. on November 3 (set forth in the right margin, above) add up to 48.50. AWARD The grievance is sustained For the period described in the above Opinion, the Company shall pay to the grievant the difference between the compensation already paid and 48.50 hours at the regular rate of pay to which he was entitled under the Agreement. APPENDIX B NOTICE 10 Al L EMPi OYEL.S 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 Wit L, upon request, make available to Local 115. United Cement, Lime and Gypsum Workers International Union, Al L-C10. information concerning all payroll cards and other payroll records setting forth the hours worked by. and compensation paid to employees in the bargaining unit of all of the hourly paid employees in our Northampton plant covered by the contracts between Respondent and the Union in effect from October 1965 to the date of this decision Dated By UNIVERSAL AriAS CEMENT DIVISION OF ]HE UNITED STATES STEEL CORPORATION (Employer) (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, 1700 Bankers Securities Building. Walnut & Juniper Streets, Philadelphia. Pennsylvania 19107, Telephone 597-7601.