General Electric Co.

68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Electric Company and International Union of Electrical Radio and Machine - Workers, AFL-CIO-CLC. Case 1-'CA-6811 'July 14, 1971- DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On October 5, 1970, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled pro- ceeding, finding that 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. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal as to them. Thereafter, General Counsel, Charging Party, and Respondent filed exceptions to the Trial Examin- er's Decision together with supporting briefs. The Charging Party also filed a brief in answer to Respondent's 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 I error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner as modified herein. We find, contrary to the Trial Examiner, that the Respondent violated Section 8(a)(5) and (1) of the Act by denying the request of the Union that the Respondent supply it with correlated wage informa- tion which the Respondent had obtained as a result of an area wage survey it conducted. In 1967 the Union filed approximately 100 wage rate grievances, requesting that certain job rates be increased "because of added skills and responsibili- ty." During the discussions of these grievances the Union frequently asserted that the rates in question were below the standard in the community. In 1968 and in 1969 the Company conducted "wage surveys" in the Fitchburg area, obtaining data from a number of other employers in that area. The Company told the employers giving this data that it would be kept confidential. The "wage surveys" included the hourly 192 NLRB No. 9 wage rates which each reporting company paid to each of the various mechanics whose job descriptions were contained in the list furnished by, the Company (e.g., tool-and-die makers, electricians, common, laborers, boring-maehing operators, etc.). In ' the course of discussing the wage grievance on April 23,' 1969, the Union asked the Company to make the wage survey data available to the -Union. The: Company on June 6, 1969, furnished the Union with ,a list of the companies from whom it had obtained the information, together with a summary sheet showing for each job in question the highest wage rate uncovered by the survey, the lowest rate, the median rate, and the Company's rate. The Union then requested that the Company "correlate" the data by furnishing the wage data for each employer, job by job. This the Company refused to do, claiming that it was "confidential." The Company contended that it conducted the wage survey at the request of its officials in New York, who wanted the data in connection with forthcoming national negotiations. The Company further contend- ed that it did not rely on that data in taking or maintaining its position before the Union that the wage grievances lacked merit. The Trial Examiner found that although company testimony along this line is far from inherently convincing, he was satisfied that it is substantially accurate, that the wage grievances did not cause the Company to take the survey, and that it did not rely on the survey in denying the grievances. He found, because the Company did not so rely in this case, it did not violate its bargaining obligation by its refusal to produce the correlated data. We find that the correlated data requested by the Union was relevant and necessary in order that it might bargain intelligently concerning wages. The Union needed the information to check the accuracy of the survey. It is well established that a request for relevant and necessary information cannot be denied on the ground that it is confidential. However, we do not agree with the Trial Examiner's ultimate conclusion that the information requested in this case need not be produced because the wage grievances did not cause the Company to take the survey, and the Company did not rely on the data in considering the grievances. Even assuming the Re- spondent took the wage survey pursuant to instruc- tions from its corporate headquarters in New York City and not for the immediate purpose of adjusting wage rates at its Fitchburg plant, we find that even if Respondent did not specifically rely on the wage surveys in regard to individual grievances, its reliance was inherent in setting the wage rates and in considering the grievances as a group with respect to their overall wage structure. We interpret Company GENERAL ELECTRIC CO. 69 spokesman James Corzine's testimony as implying that the grievances had- been considered by the Company in-taking the position that its "rate-structure was proper.." Thus Corzine testified: On the, contrary, at, the grievance meetings I had constantly taken the position from the first time we started discussions that we' looked at the griev- ances, we considered them' as a group and our rate structure was proper and the union was the one saying: something was wrong, and it was their responsibility, to sustain their case. [Emphasis supplied.] This can only mean `that the Company considered its wage, structure "proper" in relation to the wage structure in the Fitchburg area. This position was maintained, throughout. the grievance discussions. We fail to perceive how the Company could reject the grievances as ,a group on the grounds that its wage structure was "proper" without taking into account area wage survey data which it had,in its possession.' Contrary to-our dissenting. colleague, we do not hold that any information which could have relevance to determining a party's, decision with respect to any matter under negotiation or to be negotiated must upon request be revealed- to the other party. Our decision is bottomed on our conclusion that there was inherent reliance by the Company upon the wage surveys in its possession as evidenced by the Compa- ny's testimony that wage, surveys are used to evaluate the Company's wage structure and to determine if that wage structure is proper and effective for the purpose of attracting and retaining employees from within its competitive wage, area. In other words, the rate structure from the highest to the lowest must be competitive if it is to be characterized as the Company does as "proper." We conclude, therefore, that the Union has a right to correlated area wage survey data in order to properly perform its function as collective- bargaining representative.2 - - Accordingly, .we find that the Respondent violated Section 8(a)(5) and(1)of the Act by refusing to furnish the area wage survey information requested by the Union showing the specific wage rates and job classifications correlated with the specific company surveyed, and 'we, shall order the ,Respondent to furnish that information. ORDER Pursuant to Section ' 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts'as its Order the recommend- ed Order of the Trial Examiner as modified below and hereby orders that Respondent, General„ Electric Company, Fitchburg,- Massachusetts,- its- officers, agents, successors, and assigns, shall- take the action set forth in the Trial Examiner's recommended Order as herein modified: 1. Insert the following as,-paragraph 1(c) and reletter the present paragraph 1(c) as 1(d). - "(c) Refusing to bargain collectively with Local 286 of the International Union ' of Electrical, Radio and Machine' Workers, AFL-CIO-CLC, as the'statutory bargaining representative ' of_,,the production and maintenance employees at its plant at Fitchburg, Massachusetts, by refusing to furnish the Union with correlated information concerning the Respondent's area wage surveys." 2. Insert the following as paragraph 2(b) and reletter the present paragraphs 2(b), 2(c), and 2(d) accordingly. "(b) Upon request furnish to the Union correlated information concerning the Respondent's area wage surveys and other information necessaryto enable the Union to bargain intelligently on rates of pay at the Fitchburg, Massachusetts, plant. " 3. In footnote'6 of the Trial Examiner's Decision substitute "20" for "10" days. 4. Substitute the attached notice for the notice' attached to the Trial Examiner's Decision. CHAIRMAN-MILLER, dissenting: The majority errs here, in niy view, either as to fact or as to law, or both, in overruling the Trial Examiner, who found ' that Respondent, did 'not rely upon 'the correlated survey data in issue and' therefore had no duty to provide it to the Union. The majority seems to find as a fact that'Respon- dent relied upon such data. There' is no basis for such a finding in the record. The record in the case 'shows that while General Electric Company frequently relies on wage survey data in establishing and adjusting wage rates, this practice has never been followed with respect to `the Fitchburg plant. Rather, at Fitchburg, Respondent had adjusted wages only if ' and when ` employee turnover in a given classification demonstrated that a higher rate was needed to attract and retain ;person- nel.' The record also shows that the grievances at issue did not rest upon a claim that Respondent's wages were out of line with'the area, but rather upon a claim that the jobs in question had changed over a period of time by addition of responsibilities requiring,' in turn, 1 It is illogical that the Company had in its possession wage surveys of such information or that there was no general reliance on such data, either comparable employers in the area and yet did not rely, directly or in initially setting wage scales or in treating the grievances as a group. indirectly, on such surveys in concluding that its "rate structrure was 2 General Electric Co., 173 NLRB 164,' General Electric Co., 184 NLRB proper." We deem it specious to-argue, therefore, that by not citing or No. 45. - proclaiming any reliance on such data, it should not be required to furnish 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD additional skills. Nor did Respondent make reference to area wage' staridards'or to area wage data'either in- answering`" the grievances or in advancing its position when--discussing the merits of the grievances. The survey here came into being not because of any local wage discussions, but because the national office of the Company, desired the, information, for use in upcoming nationalnegotiations. Under these, circumstances, there is no factual basis for a finding that the surveys here were relied upon by Respondent, in` connction 'with the grievances at, duty to disclose any such data. issue, and it had no-,' The majority finds-it`"illogical" that Respondent did not rely on this data. Whether`; or not. Respondent acted "logically" is not our concern. The issue is, whether the facts in this record support a finding of reliance. For its factual basis, the ,majority relies solely, upon, one statement of one witness (somewhat misleadingly isolated from the total context of his testimony) that "we considered them [the. grievances j as a group and our wage structure, was proper.": It will Abe noted that even in, this `statement, selected to buttress the" majority position, there is, no .reference whatever either to area rates or to wage survey data. Yet the majority bases its reversal, of the Trial Examiner and its finding of reliance on this slim reed, while ignoring the record evidence that (1) no wage surveys have been utilized-in the past ,to establish or adjust rates at Fitchburg, (2) whether wages in general at Fitchburg were out of line with area rates was not the basis "either ofthe' grievances, or of Respondent's defense- thereto,, and (3) Respondent did' not rely upon the data in its grievance discussions with the Union. The, majority, dismisses those facts by reciting, that, it is "specious to argue .. that there was no general- reliance on such data."'But that recital is no substitute for, the Trial, Examiner's finding based, as it is," on substantial evidence. ' If, the majority is saying that regardless of the facts- in ,the record as to reliance, it would nevertheless as a matter, of law require Respondent to furnish the data as "relevant and necessary,", then it errs as to the law. Except for information as to employees, wages, and jobs within ; the unit,-as, to which we require full disclosure because the parties must have before them the essentials with which the bargaining will deal, we have' not required parties to, disclose inforrination collected by them when theydid not clearly rely upon, such information. As the' Court of Appeals for, the Third Circuit correctly pointed out in Curtiss-Wright Corporation v. N.L.&B.,347F.2d61,69(1965),, wage, and related information pertaining to employ- ees in the bargaining unit ispresumptively relevant, for, as such data concerns the core of the employer-employee relationship,- a -union , is not required' to show theprecise relevance of it, unless effective employer rebuttal comes forth; as to other requested data, however, such as-employer' profits- and production figures,,, a union must; by reference to the circumstances of the case, as' an initial matte`r`, " demonstrate- more " precisely the relevance of the data it desires.- Employer`s' and unions routinely collect substantial amounts of information of many types and varieties in preparation for the discharge of their negotiating and grievance handling duties. Since each is in, some sense in a position' of advocacy in ` both' bargaining and,, grievance handling, each- will choose to `use , such of that information as may be favorable `to its position, - and may, choose not to volunteer such information.as may be unfavorable. Good-faith bargaining does not require more, and certainly does-not require that' each- party make full disclosure to the--other of every last piece of-informati'on it may'have u=nearthed. And this is true regardless of the fact that some-or- all '-of such information may clearly be "relevant" to certain subject matters under discussion. A clear example is to be found in the line of cases dealing- with information as to the employer's finan' cial condition.- Rare, indeed, is the employer who enters contract negotiations without carefully review- ing 'and assessing' its profitability, its liquidity, and` =its ability, or lack thereof, to absorb`' additional labor costs. In" the generalized sense in which the majority here seems to use the ter=n, every employer "relies" upon such data in determining the extent to winch- it, can go in meeting union demands. But we hive held-that such data need be'supplied"to a union if and . only `if Respondent,,-specifically articulates,' its reliance on inability to, pray in the bargaining or -grievance, discussions (Caster --Mold & Machine Co., Inc., 148 NLRB 1614 (1964 ; Empire Terminal Warehouse Co., 151 `NLRB" 1359 (1965); ef. N.L.R.B. v. Truitt M Co., 35'1 U.S.149 . ' The rationale of this precedent- compels the conclu- sion that wage survey datamust be supplied'if a party, premises its attack on or defense of'existing wages on the area or industry standards evidenced ' by such data. But here this was not true. The Union's demand, based on additional duties, might, upon request, have to be backed by any data .in its position as to what duties had been added. And Respondent's defense that employee turnover was the real -factor demon- strating the-propriety or impropriety of w rates ,might have to be backed by its data regarding turnover. But there is no legal basis for requiring Respondent to produce data on which it did not rely and which was relevant only to a position, not taken, or to - an, argument not advanced, by the Respondent. The majority's departure from precedent may well GENERAL ELECTRIC CO. have'the-effect of -encouraging employers and unions to, remains as urlinformed as possible. The decisions in the earlier, General Electric wage survey cases 3 were troublesome enough- in this connection, because they might, to some extent, have been interpreted so as to deter-employers-from compiling-useful wage data. But in each of 'those cases-General Electric had chosen to utilize the data it collected as the basis for its position in bargaining or -grievance, handling, and good faith seemed to, require that it respond to factual inquiries for',fttrther-detail as<to the data on which it was openly and -vigorously relying., Restricted to those facts,` the decisions in the earlier cases cannot properly be interpreted,in such manner as to deter other parties who do not so utilize `such data from continuing to collect wage data or other self-informative materials. But this ,decision appears to . hold that any such information which could have relevance to shaping either party's decision with -respect to any matter at issue or to be negotiated mustbe revealed to the other party upon request. If that is=what my colleagues hold, then we have stretched the meaning of good-faith bargaining well beyond reason and have done a gross disservice to both unions and employers. $ General Electric Co., 188 NLRB No. 107; General Electric Co., 188 NLRB No. 106;' General Electric Co.,'188 NLRB No: 105. APPENDIX NOTICE TO' EMPLOYEES POSTED-BY ORDER OF THE NATIONAL' LABOR RELATIONS BOARD Ail Agency of the United States Government WE- WILL NOT make any changes in the Code of Conduct without affording your bargaining repre- sentative, Local 296, International Union of Electrical, Radio and Machine Operators, AFh-CIO--CI:C, the 'opportunity to bargain over such changes. WE WILL NOT refuse to furnish the Union with correlated information concerning our area wage surveys to enable the Union to process intelligent- ly grievances over rates of pay. WE- WILL rescind and expunge any disciplinary action we have, taken under the 1969 Code of Conduct which is harsher than -would'have been taken for similar conduct under the preceding code. The 1969 Code of Conduct will be placed in effect 60 days from this date unless it is at that time the subject of bargaining negotiations. WE WILL permit your bargaining representative to make timestudies when it so requests in good faith-in the course of processing a grievance. GENERAL ELECTRIC COMPANY (Employer) 71 Dated - By (Representative) - (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any, other material. Any questions concerning-this notice or compliance with its provisions may be directed to the' Board's Office, 20th Floor, John F. Kennedy Federal Build- ing, Cambridge and New Sudbury Streets, Boston, Massachusetts 02203, Telephone 617-223-3300. TRIAL EXAMINER'S DECISION STATEMENT OF TIIE CASE FREDERICK U. REEL, Trial Examiner: This proceeding, heard at Fitchburg,. Massachusetts, on July 14 and 15,.1970; pursuant to a charge filed August 6; 1969, and a complaint issued -December 23, 1969, and thereafter amended, presents questions as to whether Respondent, herein called the Company, violated Section 8(a)(5) and (1) of the Act by any or.all of the following acts: (a) instituting a new "code of conduct," allegedly without bargaining with the Charging Party (herein called the IUE) or its affiliated local (herein called "the Union"); (b) refusing to permit, the Union to make a "time.study" of a job which had become the subject of a grievance; and (c) refusing to furnish the, Union certain , data in .connection with a survey of area wage rates which the Company had conducted.' Uponthe entire record, including , my observation of ; the witnesses, and after due consideration of the unusually helpful-briefs filed by 'each of the parties, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED Respondent, a New York corporation which operates facilities in several States (including one in Fitchburg, Massachusetts, the sole plant involved in this proceeding), produces electrical equipment for shipment in interstate commerce and is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Charging `Party (the IUE) and- its affiliated local -(the Union)- are labor, organizations within the meaning of Section 2(5) of the Act. 3 Other violations alleged in the amended complaint were settled at the opening of the hearing, and no testimony was, proffered with respect thereto.'- 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II., THE UNFAIR LABOR PRACTICES A. The "Code of Conduct" On April 16, 1969, at a regular meeting of the Company and the Union, which is the certified bargaining representa- tive of the Fitchburg employees, the Company presented the Union with a printed booklet captioned "Code of Conduct, Bargaining Unit ' Employees .- , . Effective 4/l/69." This "Code of Conduct" superseded the preceding typewritten "Code of Conduct andDiscipline. Procedures" which„ had; been in effect since 1964. The Union had, declined to negotiate over the terms of the 1964 code at the time it was instituted and had later, referred to it during an arbitration proceeding as `"an internal company docu- ment." Both the 1964 and 1969 codes ' set- forth various offenses for which, the Company would discipline employ- ees and the nature of the discipline contemplated for each' offense. In at least one significant respect the 1969'code was harsher than its predecessor. The new code provided for a warning notice, rather than an oral reprimand, for the first minor offense, so that an employee would be discharged after four minor offenses within 1 year, whereas under the prior code the same series of offenses would lead to a lighter penalty. At the time the Company presented the Union with the new code, the ,company spokesman stated in response to a direct question that he did not intend., to "negotiate" the new code but that he would "discuss" it and answer questions about it. The Company did not in fact,distribute the new code to the employees until some 3 weeks after this April 16 meeting., At an intervening meeting the Company apprised the Union that the code was to be distributed in the near future :and invited questions on the new code, but received none. After the new code was. distributed the Company, in. response to "a union, criticism, clarified the term "excessive garnishments" used-in the new code. Answering the General Counsel's contention that the Company, imposed the new code without bargaining with the Union and thereby violated Section 8(a)(5) and (1),2 the Company -contends that its imposition of the code was privileged under the management prerogative clause of its contract with the Union, that the Union waived its right to bargain over revisions of the code, and that in any event the Company satisfied any statutory obligation to bargain over the revisions. I reject these contentions for the reasons indicated below. The clause in the contract on which the Company relies provides that it retains the exclusive right to manage its business, including (but not limited to) the rights to determine the ,methods and means by, which its operations are to be- carried on, to direct the work force and to conduct its operations, in a safe and effective manner. I cannot read that language as giving, the Company the right to prescribe a, series of Offenses,, and the penalties therefor, or to alter a preexisting list, without, giving the Union an opportunity to bargain. The expression "to direct the work force" fairly connotes instruction in the carrying 2 "Plant rules, particularly where penalties are prescribed for their violation, clearly affect conditions of employment and are mandatory out of tasks a n4 does not extend to listing offensive conduct and^,prescribing penalties., The . suggestion, that the Compa- ny ,at the least, was acting in - good faith in construing its contract as permitting unilateral action is -ill taken in the light of N.LR.B.-v. Benne Katz,.369 U.S. 736, 743. The "waiver" argument rests on the Union's failure to negotiate-,over the preceding, Code-of Conduct, and-its subsequent assertion .in a. brief filed in a 1967 ,arbitration proceeding that the code ° wasp "an internal Company document" which was "unilaterally, promulgated" and not negotiated. Similar , contentions were rejected in Miller Brewing Co., 166 NLRB 831, 832, enfd. 408 F.2d,, 12 (C.A. 9, 1969). As the Ninth Circuit: held in Miller, 408, F.2d at 15, failure on a_ single occasion to exercise a statutory right is not a clear-and unequivocal waiver of that right for all, time to come. A closer question is, presented by the Company' s claim that it satisfied-its , bargaining obligation with respect to the new code.- Certainly a significant period of time elapsed between the date the code was given the Union and the date it was released to all employees: During this period, the Company expressed a readiness to "discuss" the code and to answer questions the Union might have.. On the other hand when the Company handed the new code to : the Union the Company expressly stated that it would not "negotiate" the code. The Company in its brief refers to a "meaningless semantical distinction between the words `discuss' and `negotiate.' " The distinction, however, was first drawn by the Company's representative who gave the code to the Union, and I am not prepared to find that he intended a meaningless distinction. Furthermore, the manner, in which the Company presented the code belies any intention to engage in ood- faith bargaining over its, contents. Although the Union- was aware that the Company was' preparing a -revised code, the' first notice the Union ever received of the changes was on April 16 when it was confrontedlwith a formal printed document, dated April 1. To besure the code was not put into effect at once, and, the Company-at-the hearing took the position that the cost of reprinting the 4,000 copies already run off would have been only $320. But the fact that the Company had 4,000 copies already, printed before it ever submitted a copy to the Union, coupled with the statement' at the time that the company would not "negotiate," leads me to `conclude thatthe Company did not bargain with the, Union in good "faith over the institution of the new code even though the Company somewhat ameliorated this unfair-labor practiceby its later invitations, to discuss the matter and by its delay 'in distributing the code to the employees. B. The Refusal To Permit the Timestudy In 1968 the 'Union filed- a grievance, on behalf of an employee, alleging that the time the Company'allowed for removing the, taper on the 10-foot boring ` mill ' was subjects of collective bargaining." Murphy Drexel Company, 18,4NLRB No. 87 (TXD, first paragraph under II, A, 2), and cases there cited at fn. 5. GENERAL ELECTRIC CO. 73 insufficient. The Company allowed .354 hours, and the Union requested payment of an additional.7 hours.3 After the, Company denied the grievance at the first step (the foreman denied it, stating that the .354 allowance had been followed since 1958), the matter went to the "second step," meetings between union and company representatives on May 1 and 6, 1969. At these meetings the Union first requested the Company, to make a timestudy of the operation in question "to factually establish the length of time,involved to do this operation of removing,the taper." When the Company refused; the Union requested permis- sion to "bring in [its],own time study expert to make a time study-.on this operation so that [it] could evaluate the grievance at Step 2 relative to the length of time actually involved in doing the operation." The Company denied that request, stating that it would determine when and if to make a timestudy of particular jobs. The Union then took the grievance to the third and final step (the national level), where it was again denied. The grievance is still alive in the sense that the Union could strike over it. At the time the grievance was pending, just before the step 2 meetings in May 1969, the Company made a "casual observation study" of the operation in question (i.e., timed the man -performing the job) and determined to its satisfaction that the existing time allowance was adequate. The Company has a fixed policy at the Fitchburg plant not to make timestudies and not to permit the Union to make them. As a -Company witness put it, "Time studies haven't- proved themselves to our :satisfaction. They have proven to be unreliable." The following exchange occurred during the testimony of James Corzine, the company manager of unionrelations: TRIAL EXAMINER: Your position is if the union has a grievance and wants to find out if it has merit or -whether to press a grievance to a higher level and, therefore, wants in aid of determining that fact to have one of its experts, one of its employees,come in and make a time study of the job that it is the policy-of this company at this particular plant under- no circum- stances to permit it? ; THE wiTNEsss: That is correct. The Company contends that the Union had waived any statutory right to' a timestudy, that a timestudy was not relevant or necessary to the processing of the grievance, that the Union - had adequate alternative sources of information, and that the disruption in the plant which a timestudy would- have caused outweighed the Union's need for the data such a study would produce. The "waiver" , argument rests on two clauses -of the contract between'the Company and the IUE. Article VI, Section:4(e) of the agreement reads: When a Company representative makes a time study of any job, the employee-and his Steward will be notified and advised of its purpose. On jobs where the piece price is in dispute between the Company and the Local, and is scheduled to be retimed, the Steward may be present during this -retiming and observe the conditions under which it is made. If the Steward requests, the Foreman will explain to him the data used in malting up the piece price from the time study and/or applicable tables. In addition, section 2(b)(2) of article XIII provides in relevant part: In those cases' where it is mutually agreed by Management and Local representatives that an inspec- tion of the job would be helpful in'settling the case, a subcommittee of the Local with Management repre- sentatives shall be allowed to make an inspection of the job. Local representatives may include the Business Agent or his assistant or officers, of the Local. The Company argues that those clauses represent the limit of the Union's rights with respect to timestudies and job inspections and asserts in its brief that "By entering into the collective bargaining agreement containing these clauses, the Union has obviously `bargained away., or `waived' any statutory rights that it may have had to insist upon a time study by an outsider-." I am, constrained -to reject this argument. Waivers of.,statutory rights are not favored and must be clear and explicit. II find none implied, let alone explicit, in the quoted clauses,-w - , hich describe the Union's rights 'in -the event of a company timestudy and provide for "inspection" of a job but are silent as to the Union's right to conduct its own timestudy. See General Electric Co. v. N.LRB., 414 F:2d 918,-923-924 (C.A. 4; 1969); General Electric Co., 179 NLRB No. 122. The Company contends that as the Union was not complaining of the- method used in performing the operation but only of the time allotted thereto the Union should have been content.with the elapsed time observation or could have made its own similar observation and did not need the timestudy it requested. It may` well be, that the timestudy would not have advantaged the Union, and it may even be that the Company's suggested alternatives were adequate. But the Union's right to undertake a timestudy in determining whether to press a grievance does not turn on "necessity" in the sense of "indispensability" It is enough if the Union shows that the data would be reasonably relevant to the-issue. To be sure the cases talk in terms of "necessary" but that word in this setting implies nothing more than "reasonably appropriate" Cf. McCul- loch v. Maryland; 4 Wheat. 316, 324--325,(1819). Where a bargaining representative in the course of determining whether to press a grievance seeks data which - is not demonstrably irrelevant implementation of the collective- bargaining system requires that such data be made available. This rule, well accepted in.wage data cases, seems to me equally applicable here. Of course, if the request is not made in good faith but is a harassing tactic the results would be otherwise. Such motives must be established, however, and not presumed. The mere fact that - the Company would regard the data as unnecessary- or unsatisfactory is not enough; if the Union in good faith desires to make the timestudy, for an apparently legitimate purpose to which the data is reasonably relevant, the Union should not be required to prove "necessity" in any' more absolute sense. To be sure, as the-Company points out, the Union's desire for the timestudy must be balanced against the inconven- 3 The oral testimony and the Company's brief so describe the grievance. was for a total allowance of .7 hours. The actual grievance which is in evidence seems to indicate that the request 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ience to the _ Company, - and any real -.disruption of operations might well tip the scales. Fafnir Bearing Co. v. N.L.R.B.,-362 ,F:2d 716, 722 (C.A. 2, 1966). The Company, however, has not shown that the timestudy here contem- plated would cause any more interference with its productive operations than those involved in the Fafnir case (see 146 NLRB 1582, 1586) or in Waycross Sportswear, Inc., v. N.L.R.B., 403 ,F.2d 832, 836 (C.A. '5, 1968)`. See also General Electric Co:, 180'NLRB No. 13. I therefore find that- the Company violated Section 8(a)(5)' and, (1) of the Act when -it refused to permit the Union to conduct a timestudy of the job which was the subject of a pending grievance. C. The Refusal To Give "Correlated" Wage Data In 1967 the Union filed approximately 100 wage rate grievances, requesting that certain job rates' be increased "because of added-skills and responsibility." During the ensuing discussions of-these grievances the Union frequent- ly - asserted that, the' rates in question were below the standard in the community. In 1968- and again in 1969 the Company conducted "wage surveys" in the Fitchburg area, obtaining data from" a number of other employers in that area. This information, which-the Company obtained upon representing to'the-other employers that it "will, of course, be considered-confidential,"`included, the hourly wage rates which each reporting company paid to each of the various mechanics ` whose job descriptions were contained in the list furnished by the Company (e.g., tool-and-die makers, electricians, common laborers, boring machine operators, etc.). In the course of discussing the wage grievances the,Union on April 23, 1969, .asked the Company to make the wage survey data available to the Union. The Company on June 6, 196%, furnished the Union with a list of the companies from whom-it had obtained the information, together with a summary sheet showing for each job in question the highest wage rate uncovered by the survey, the lowest rate, the median -rate, and the Company's rate. The Union then requested that-,the Company "correlate" the data by furnishing the wage data for each employer, job by job. This the Company refused to do, thereby giving rise to the issue in this case : was the refusal a violation of the Company's bargaining obligation. The Union-pressed for the-information on the ground that the data given in the summary was insufficient. More particularly the Union complained that -without the detailed data it -could not determine whether the jobs or the machines involved in, the survey were in fact similar to those -at the Company, whether the rates reported in the summary included incentive bonuses, whether the rates were, accurately reported (the Union -detected one error in the rates reported for the Company itself), and which of the various employers, did or did not have jobs in the particular categories. The Company declined to give the, data, claiming that it,was,"confidential." In one highly critical area the testimony is - in sharp conflict. The testimony of James Bevan, chairman of the Union's negotiating committee, is that the existence of the wage survey first came to light at the meeting of April 23, 1969, when the company spokesman, James E. Corzine, relied on it in -answering---the Union's claim that the Company's, wages were below , those paid by other employers in the area. Corzine flatly denied this testimony. He testified as follows when asked who "first brought up" the area wage survey: - A. The union brought it up. They asked me if I had taken one, and I saidyes, I had taken one. This was not brought, up though by-me stating that I had taken the survey because of these grievances and released the survey as a result of the grievances. On the contrary, at the grievance meetings' I-, had constantly- taken the position from the first time we started discussions that we looked` at the grievances, we considered them as a group and our tale structure was proper and the union was the one saying something was wrong and it, was their responsibility to sustain their`case. - - - Q. Had you. utilized this area wage survey to decide the merits ofthese rate grievances in any way? - A. In no way: - Q. Did you advise the union of this?' A. On several occasions. According to Corzine, he conducted the wage survey at the request of company officials inNew York,' who wanted the data- in connection with forthcomingnational negotiations. He further testified that although the data,supported- his position that the Company's wage rates were adequate; to "attract and enable us, to retain personnel," he,did. not rely on that data in taking or maintaininghis-position°before• the Union that the, wage grievances lacked merit. According to Corzine,, he was careful to refrain from reliance on the survey precisely because he feared that if he relied on it,he might have to disclose its contents which he had obtained in confidence. - Bevan's testimony that Corzine had, relied on the survey was corroborated by another union committeeman, Finnerty, but the, latter's testimony--was. thoroughly confused in other respects, and his demeanor was such as to lead me to place no credence on his testimony. Thus faced with a choice between the conflicting stories of Bevan and Corzine, I must report that although Corzine's testimony is far from inherently convincing, I am satisfied that it is substantially accurate, that the wage grievances., did not cause the Company to take the survey, and that it acid not rely on the survey in denying the grievances. At the, time of the, hearing, the latest Board pronounce- ment in, this area was contained in General Electric Company, 184 NLRB No. ; 45, a case, involving the Company's Rome, Georgia,, plant. After the filing of briefs I-was advised that the Board has reopened that, caseand set it for oral argument. Under all the circumstances, I believe it will expedite the ultimate disposition of this case if I proceed to decide it at this time in accordance-with my view of .the law.. Any party may then bring the-matter before,the Board for its disposition in the-light of its reconsideration of the Rome case. As ,I view the law, the Company would be under a duty to produce the dataeven though obtained "inconfidence," if the Company relied on the,, data in considering, the grievances. However, because the Companydidnot sorely in this case it did not violate its bargaining obligation by its refusal to produce the correlated data. Cf. United Firer Prroof GENERAL ELECTRIC CO. 75 Warehouse Co. v. N.L.R.B., 356 F.2d 494, 498 (C.A. 7, 1966). CONCLUSIONS OF LAW 1. The Company by imposing a new code of conduct on the employees without bargaining with the Union in good faith over the changes in the code, and by refusing to permit the Union to conduct a - timestudy in the course of processing a grievance engaged in unfair labor practices affecting commerce within the, meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. 2. The Company did not, under the circumstances of this case, commit -an unfair labor practice by withholding from the Unioncertain data collected by the Company in a wage survey. - - Tint REMBDY L shall recommend that the Company cease and desist from the unfair labor practices found, and that it take certain affirmative action designed to effectuate the policies of the Act. More specifically, I shall recommend with respect to the timestudy matter that the Company permit the Union to undertake timestudies in the course of handling grievances where the request for such timestudies is made in good faith. As to the code of conduct, in the light of all the opportunities for bargaining over changes in the code which are available to both parties, I see no purpose to be served in abrogating the new code. I find merit in General Counsel's alternate request for relief; namely, that the Company should "fully restore to the status quo ante any employees who have been disciplined or who have suffered any losses by reasons of Respondent's unlawful unilateral action. Unit Drop Forge Division, Eaton Yale & Towne, Inc., 171 NLRB No. 73." " On the date on which the Company achieves compliance with this order (not less than 60 days after posting of the notice herein recommend- ed), unless the Union has pending at that time a good-faith bargaining request concerning the code, the Company may be considered free to implement infuturo the new code. Finally I note General Counsel and the IUE seek an order against the Company nationwide in scope. The Company, which was placed on due notice of this request, objects to any such order pointing out that the Board's certification at Fitchburg names the Local, not the International, as the bargaining representative and that all the evidence in this record concerns the Fitchburg plant. General Counsel and the IUE point to the Company's nationwide pattern, particularly with respect to not making wage surveys available. Of course, inasmuch as I have recommended dismissal of that aspect of this case, the issue of the remedial order assumes, at least temporarily, some elements of mootness. If this Decision should be reversed in that respect, however, the matter would again be relevant, and, with that possibility in mind, I think it appropriate to address myself to the issue. I do not doubt the Board's power to issue an order nationwide in scope against the Company. Such an order 4 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein might be based not only on the record in a particular case but on other records before the Board involving the same parties. The question whether • the power should be exercised, however, is more difficult. Thecase for exercising the power rests on the fact that the Company, at widely scattered plants, has refused to give the Union correlated data from wage surveys. Assuming for' the moment (contrary to my, conclusion herein) that each of these refusals violated the Act, the argument runs that this shows a general nationwide plan to flout the statute in this respect, thereby justifying a' nationwide order. Implicit in the argument is the assumption that this order will be embodied in a court decree, that the Company will then commit a similar infringement at somenewplant, and that it stay then be held in contempt of court. (Or else it must be argued that the Company would violate anew, but-for, the fear of a contempt citation.) As of this writing, however, there is no reason to assume that once the law was authoritatively settled the Company would continue to violate it. The legal issue here raised is a highly sophisticated one (as witness the fact that the Board has set it for oral argument), and no opprobrium can fairly attach to the Company's raising it in each case in which the JUE requests the data. Moreover, if the Company, once the issue is settled by judicial authority, should continue to violate the Act, far quicker relief is available by using the injunctive provisions of the Act, which would bring the issue speedily before a local judge instead of before a master appointed by a court of appeals (which might be thousands of miles from the site of the alleged contempt). For these reasons, even if a violation as to the wage survey be found in this case, I would not extend this order beyond the Fitchburg plant. Accordingly, upon the foregoing findings and conclu- sions, and upon the entire record, I recommend , pursuant to Section 10(c) of the Act, issuance of the following: ORDER4 Respondent, General Electric Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to permit Local 286 of the International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, to conduct timestudies at the Fitchburg, Massachusetts, plant of the Company, where such timestu- dies are requested in good faith in the course of processing a grievance. (b) Implementing changes in the 1964 Code of Conduct governing employees at the Fitchburg plant who are in the bargaining unit represented by the aforesaid Local without first giving the Union a bona fide opportunity to bargain collectively over the proposed changes, with the under- standing that the changes promulgated in May 1969 may be implemented upon the completion of the notice posting period hereinafter provided unless at that time the matter is the subject of current collective bargaining. (c) In any like or related manner interfering with the shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD efforts of the aforesaid Union to bargain collectively on behalf of the employees it represents at the Fitchburg plant. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind any disciplinary action it may have taken under the ' 1969 Code of Conduct which would not have been ,taken under the preceding 'Code of Conduct, making whole any employee who `has suffered from such discipli- nary action. '() ` post at its plant in Fitchburg, Massachusetts, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for 5 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "POSTED, BY ORDER OF THE NATIONAL ,LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN Region 1,. after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by =Respondent to insure that said notices are not altered, defaced,,or,covered by any other material. (c) Notify the Regional Director,for Region 1, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.6 ORDER OF THE NATIONAL LABOR RELATIONS BOARD." ' ' 6 In the event that this Recommended Order is 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 Respondent has taken to comply herewith."