United States Gypsum Co.

UNITED STATES GYPSUM COMPANY 305 United States Gypsum Company and International Union of Electrical, Radio and Machine Workers, and its Local 727, AFL-CIO-CLC. Case 8-CA-6473 November 14, 1972 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY AND PENELLO On August 2, 1972, Administrative Law Judge' George Turitz issued the attached Decision in this proceeding. Thereafter, the Respondent and the General Counsel filed exceptions and supporting briefs, and the Respondent filed an answering brief to the General Counsel'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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. issued a complaint and notice of hearing which was duly served on Respondent. Respondent filed its answer in which it denied all allegations of unfair labor practices. A hearing on the complaint was held before me at Warren, Ohio, on March 8 and 9, 1972, at which the General Counsel, Respondent, and the Union were represented by their respective attorneys. Respondent and the General Counsel have submitted briefs. Upon the entire record, and from my observation of the witnesses I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, United States Gypsum Company, is a Delaware corporation operating plants in various States of United States, including a plant located at Warren, Ohio, where it is engaged in the manufacture and distribution of building materials and expanded metal products. In the course of its operations at the Warren plant Respondent annually ships products valued at in excess of $50,000 directly to customers located at points outside the State of Ohio. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the National Labor Relations Act, as amended (the Act). II. THE LABOR ORGANIZATIONS INVOLVED 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 Administrative Law Judge and hereby orders that Respondent, United States Gyp- sum Company, Warren, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order. i The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE TURITZ, Trial Examiner: Upon charges filed by International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC (the IUE) and its Local 727 (Local 727) (both jointly referred to as the Union) on June 14, August 12 and 19, and December 7, 1971, and served, respectively, on June 15, August 13 and 20, and December 14, 1971, upon United States Gypsum Company (Respon- dent and, at times, the Company), the General Counsel of the National Labor Relations Board (the Board), through the Regional Director for Region 8, on December 14, 1971, 1 In its brief Respondent has requested me to take official notice of a certain action brought by the Union against Respondent in the Court of Common Pleas, Trumbull County, Ohio. The complaint in that action was filed prior to the filing of the charge in the present proceeding. Respondent has not stated why this evidence, assuming its relevance, was not offered at International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, and Local 727, International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, are labor organizations within the mean- ing of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction and Background 1. The issues The issues litigated at the hearing were whether Respon- dent failed to bargain in good faith in that it (a) deliberately and for improper reasons delayed for a period of 3 to 4 months furnishing the Union information needed for administration of the current contract and for future negotiations; (b) refused to meet and confer in good faith under the contractual grievance procedure with respect to the Johnson and Gilbert grievances; and (c) denied Johnson union representation at a meeting concerned with disciplining him. 2. Bargaining history The Union was first certified in 1964, and contractual history started in 1965. In 1969 a strike was settled by a 9- month contract, and on March 1, 1970, the parties entered into the contract which was in effect when the events at the hearing Respondent's request is denied. Respondent's motion to correct record, dated April 7, 1972, and duly served on the other parties, is hereby granted. The corrections have been made and the motion, marked Resp Exh 5, has been placed in the exhibit file. 200 NLRB No. 46 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issue in this case occurred. It expired March 1, 1972. In late 1970 Respondent raised question as to the Union's majority status and filed a representation petition with the Board. An election was held and on December 29, 1970, the Union was certified for the second time.2 B. The Delay in Furnishing Information On January 4, 1971, the Union wrote requesting Respondent to meet with it for a collective-bargaining agreement for the employees covered by the certification issued by the Board the previous week .3 The letter also requested the names, addresses, birth and service dates, rates of pay, job classifications, and insurance and pension contributions of all bargaining unit employees. By letter dated February 7, 1971, Respondent furnished the bulk of the information requested, i.e., the names, addresses, birth and service dates, rates of pay, and job classifications of the unit employees .4 At some time not clearly disclosed by the record it apparently furnished the information as to the insurance contributions, and on June 16, 1971, following further demand by the Union, it furnished the pension information. On June 25, 1971, the Union wrote to Respondent requesting a "new seniority list" consisting of the same items of information relating to the bargaining unit employees which it had requested on January 4. The Union also requested job descriptions for three specified jobs. On July 7 Respondent wrote that it had no descriptions for those jobs, that the information "on the names and addresses etc." had been sent on February 7, the information on pension contributions June 16, and there had been no changes in the insurance program since the Union's last receipt of information on insurance contributions except changes of which the Union had direct knowledge. The letter then stated: If a recheck of your files does not reveal that you now have adequate information for the proper representa- tion of the employees, then, under the circumstances, please supply specific details as to exactly what is needed, and why this particular information is current- ly needed in order to adequately represent the employees, as well as why it can't be just as readily or more readily obtained by you from sources other than the Company. Finally, the letter requested, "for negotiation and representation purposes," a current copy of the IUE constitution and the Local 727 constitution and bylaws, plus copies of the group insurance and pension programs offered by the IUE to its own employees. It concluded: We need this information on the Pension and Insur- ance programs so that we can compare these plans with the ones currently offered under the contract. The Union replied the next day, July 8, that the 2 See fn. 3, below. 3 It was stated at the hearing that the Regional Director's reason for conducting an election in the middle of the 1970-72 contract term was that the contract did not provide for Respondent's exclusive recognition of the Union, but left the question of representation open and was, therefore, not a bar The original charge, filed June 14, 1971, and the first two amended charges alleged, inter aka, Respondent's refusal "to negotiate a recognition clause " That allegation was not included in the third amended charge, filed December 7, 1971, and served with the complaint. The Union's request for a requested information was needed "on all new hires, terminations and on all employees who may have had a change in job classification as of February 1971." On July 19 Respondent wrote that, if the Union could show that it could not reasonably obtain the information requested on July 8 from other sources, it would be happy to furnish it, but would appreciate learning why that particular informa- tion was currently needed in order to represent the employees. The letter closed by referring to the Company's request for information from the Union and stating: ".. . I want to call your attention to the fact that your Union has a responsibility in this matter just as the Company does. When may we expect it?" On July 22 the Union replied that the information it requested was needed for the purpose of properly repre- senting the employees "for all reasons, including upcoming negotiations." It stated, further, that it was ready to interview the employees during working hours to get the information. As to the Company's request for information, it asked that the Company detail its reasons, so that they could be evaluated. Respondent replied the next day, "agreeing" that interviewing the employees was much more practical and effective than asking the Company to supply the information, but that this did not have to be done on company time or property and could be done from the Union's own facilities. It further stated that the Union's constitution and bylaws were "necessary for the proper administration of the Contract and for determining questions of representation"; and that the information as to the Union's pension and insurance programs was needed in order to assist Respondent in evaluating its own plans in preparation for future negotiations. On July 28 the Union wrote that it had not received the information requested since June 25 and stating that the information was urgently needed in order to process grievances, prepare for negotiations, and properly repre- sent its members. The letter closed, "I expect this information immediately or I will take the matter up [with] the proper authorities." On August 2 Respondent wrote back that it would begin preparation of the requested information and that it would be submitted to the Union promptly upon receipt of the information requested of the Union by the Company. On August 12 the Union filed its first amended charge, alleging, inter alia, Respondent's refusal to provide the names, addresses, classifications, and pay rates requested. On October 12 Respondent sent the Union "a list of all new hires and terminations and all other employees who have had a change in job classifications since February 7, 1971," showing their group insurance and pension deduc- tions, addresses, birth and service dates, rates of pay, and job classifications .5 The list included 35 new hires, 9 changed classifications, and 30 terminations. The letter collective-bargaining meeting did not result in any negotiations 4 The record does not disclose to what extent, if any, Respondent furnished wage and job information relating to two other plants of Respondent as to which, according to the Union, Respondent had raised issue during the preelection campaign and which the January 4 letter also requested. 5 The Union's International representative conceded that this complied with the Union's request, so far as the material was concerned. UNITED STATES GYPSUM COMPANY 307 closed: "In exchange, I would appreciate your sending me copies of the I.U.E. Pension, Group Insurance and Constitution as well as the Bylaws of Local 727." The Union has not furnished the requested material. In December 1971 the Union requested negotiations for a new contract to succeed the one expiring March 1, 1972. Daugherty, Respondent's works manager, admitted that he could have assembled and sent the information somewhat sooner than he did. However, he testified, the information had already been furnished in February 1971 and, since the expiration date of the contract; March 1, 1972, was "months and months" away, and since the Union did not comply with Respondent's request for information, he "didn't see the urgency to jump right into his request." He also testified that the pension information and some of the insurance information were not readily available at the Warren plant. He did not, he said, recall that Rinaldi had stated that he needed the information for handling grievances and representing the employees day to day. As to the IUE pension and insurance plans, Daugherty testified that he wanted them in order to be able to make comparisons, as he did with such plans of General Electric and other employers, and thus be better able to evaluate Respondent's plan and to understand its relative position. As to the IUE constitution, he testified that in 1968 the Union's certification had been changed "from the I.U.E. and its local to the I. U. E. and its Local 727," and he testified: "I believe I would be better qualified to know all I can know, that was possible to know about the relationship between the local and the international." Rinaldi,testified that the reason for the request for an up- to-date list was that, because of changes of classification and new hires, he had found himself unable to determine whether employees objecting to transfers had valid grievances. He also stated that at no time did Respondent claim that any of the information he requested was not readily available. I have credited this testimony of Rinaldi. Concluding findings as to the refusal to furnish information In Cowles Communications, Inc., 172 NLRB No. 204, the Board stated: The law is clear and well-settled that "wage and related information pertaining to employees in the bargaining unit should, upon request, be made available to the bargaining agent without regard to its immediate relationship to the negotiation or administration of the collective-bargaining agreement." Whitin Machine Works, 108 NLRB 1537, 1541, enfd. 217 F.2d 593 (C.A. 4); Boston Herald-Traveler Corporation v. N.L. R B., 223 F.2d 58, 63 (C.A. 1), enfg. 110 NLRB 2097; Curtis- Wright Corporation, Wright Aeronautical Division v. N.L.R.B., 347 F.2d 61, 68-69 (C.A. 3), enfg. 145 NLRB 152. As such information concerns the core of the employer-employee relationship, it is presumptively relevant and "a union is not required to show the precise relevance of it, unless effective employer rebuttal comes forth ... . In N.L.R.B. v. Whitin Machine Works, 217 F.2d 593, 594 (C.A. 4), cert. denied 349 U.S. 905, enfg. 108 NLRB 1537, a case involving incidents in the course of the negotiation of a contract, the court stated: Such information should not necessarily be limited to that which would be pertinent to a particular existing controversy. . . . In N.LR.B. v. Yawman & Erbe Manufacturing Co., 187 F.2d 947, 949 (CA. 2), enfg. 89 NLRB 881 , which also involved incidents during the negotiation of a contract, the court stated: Since the employer has an affirmative statutory duty to supply relevant wage data, his refusal to do so is not justified by the Union's failure initially to show the relevance of the requested information... . In Boston Herald-Traveler Corp. v. N.L.R.B., 223 F.2d 58, 62-63 (C.A. 1), enfg. 110 NLRB 2097, the court quoted with approval the statement by Chairman Farmer concur- ring in Whitin Machine Works, supra, which included the following: I would, therefore, hold that, short of evidence that union requests for wage data are used as an harassing tactic and not in good-faith effort to secure pertinent bargaining information , the employer has a continuing obligation to submit such data upon request to the bargaining agent of his employees . . . . I am con- vinced, after careful consideration of the import of the problem on the collective bargaining process, that this broad rule is necessary to avoid the disruptive effect of the endless bickering and jockeying which has thereto- fore (sic) been characteristic of union demands and employer reaction to requests by unions for wage and related information.... I conceive the proper rule to be that wage and related information pertaining to employees in the bargaining unit should, upon request, be made available to the bargaining agent without regard to its immediate relationship to the negotiation or administration of the collective bargaining agree- ment. The majority of the Board stated, 108 NLRB at 1539, that they agreed with this statement. The foregoing principles are applicable not only to the Union's function in the negotiation of a contract, but also in its administration. See Stahl Specialty Company, 175 NLRB 129; see also Cowles Communications, Inc., supra. Respondent complied with the Union's January request for employee and job data information without inquiry as to relevancy, need, or more exact description, and it furnished the information within about 5 weeks. The Union's June 24 request for similar data was not complied with for over 15 weeks, and then only after the Union, having first threatened to resort to "the proper authorities," filed a charge with the Board . In the interim, in complete disregard of the foregoing principles, Respondent com- pelled the Union to answer a series of unnecessary questions. It ignored the fact that what the Union requested was a new seniority list and wrote that that information had already been furnished. As stated by Chairman Farmer in the opinion quoted above, an employer's obligation to supply wage data is a continuing one. Respondent also inquired whether the information could not "just as readily or more readily" be obtained from other sources, a question which I have no doubt was asked in bad faith. Its "agreeing" with the Union that 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interviewing the employees for the information outside company time and property from the Union's own facilities was much more practical and effective than asking the Company to supply it was plainly with tongue in cheek. Finally, I do not credit Daugherty's testimony that Respondent felt that the Union's pension and insurance programs would have been helpful to it in negotiations in the same way as were such programs of other large industrial employers, such as General Electric; nor do I credit his testimony that he thought he would be better qualified to bargain with the Union if he knew the precise relationship between the IUE and Local 727. It will be recalled, also, that, while Respondent later withdrew from this position, on August 2 it made receipt of that information a condition precedent to its furnishing the information the Union needed. The fact that Respondent ultimately furnished the information requested did not remove its violation of the Act. This is not the case of an employer protecting itself against unreasonable requests for information. Daugherty admitted that at least part of his delay in furnishing the information was based on the irrelevant fact that the Union failed to provide information to the Company; and the entire, correspondence convinces me that Respondent, an employer sophisticated in labor relations, raised the various issues in order to obstruct the Union in its efforts to represent the employees. Its actions in connection with the Johnson grievance, discussed below, lend further support to my conclusion that this was not just an aberration, unlikely to be repeated, but part of a deliberate policy to impede the Union in carrying out its functions as bargaining representative. I find that by delaying unreasonably the furnishing of necessary information to'the Union and by raising issues in connection therewith in bad faith and for the purpose of impeding the Union in representing the employees, Respondent has violated Section 8(a)(5) of the Act. C., The Refusal of Union Representation On Friday, April 16, 1971, Johnson, the Union's financial secretary, who worked in the plant as an electrician under Hover, the chief electrician,6 was engaged in making adjustments on a slitting machine. Hover, his supervisor, came over and moved as if to adjust part of the machine. Johnson stood up, stepped back two steps, and asked Hover if he was going to set up the machine or was Johnson. The dimensions of the machine were approxi- mately 15 by 30 feet, and the two men were some 15 or 20 feet apart. Hover replied, "I didn't touch anything." When Johnson repeated his question, Hover again said, "I didn't touch anything." He added, "You don't have to get so damned smart about it," and walked away. Hover reported the incident and that same day a "Contact Report" was executed stating that it was made because of "unsatisfacto- ry performance" in the category of "insubordination," and specifying that the action taken was a "Final Warning." Under "Remarks" the report stated: Subject employee interfered with his supervisor by threatening to walk away from a work assignment on the edge control device of the slitter line if his supervisor, the Chief Electrician, continued to adjust another part of the control. Employee Johnson should understand that this type of insubordinate conduct cannot be tolerated as it interferes with proper operation of the plant. Repetition of this type conduct can result in discharge. The report was executed by Hover, by Langewisch, the engineering superintendent, by Church, the personnel superintendent, and by Daugherty, the works manager. Later that day Church encountered Johnson and said that he would be in touch with him the following week "about this insubordination charge." On Monday, April 19, Johnson, finding that his timecard had been removed from the rack, went to the personnel office, where Church asked him to come in. Johnson said, "Mr. Church, if there is any disciplinary action, I want a union representative here." Church said, "No, Bob, come on in. We just want to talk to you." Johnson complied. He found Hover and Langewisch in the office. Langewisch said, "Bob, I hate to do this to you, but r want you to understand that you have to take orders from your supervisors." Johnson denied ever having refused an order from his superiors, which Langewisch confirmed so far as he was concerned. Langewisch then said, "About this threat to leave your job-". Johnson interrupted to deny this. Langewisch then told Johnson that Hover's procedure of having the two of them adjust the slitter together was correct and that he wanted Johnson to know that Hover would continue to do that in the future. He handed the contact report to Johnson, who said, "I deny this. This is not the truth and I refuse it." Langewisch said, "You take it for your file or whatever you want;" whereupon Johnson accepted the paper and said he would file a grievance. He then left.? Johnson testified, and I find, that, other than as already described, he was asked no questions about the incident. Concluding findings as to the denial of union representation Johnson was summoned to the office, handed the previously executed contact report, and warned orally of Respondent's policy with respect to taking his foreman's orders in general and adjusting the slitting machine in particular. He was asked no questions, and no suggestion was made, either expressly or by implication, that he admit or deny the accusation, or that he give assurance that his alleged offense would not be repeated. The allegation in the complaint that the meeting was for the purpose of having Johnson defend himself is not borne out by the record. What was done there was the kind of thing foremen do out on the factory floor every day without any question of union representation coming into play. That Respon- dent chose to dramatize the event by having it take place in the personnel office in the presence of two additional officials was insufficient to make union representation any 6 Johnson was the only employee supervised by Hover. The General 1 I do not credit Church's testimony that "Mr. Johnson agreed that the Counsel does not contend that Respondent 's action against Johnson was insubordination wouldn't happen again in the future." discriminatory. UNITED STATES GYPSUM COMPANY 309 more appropriate than it would have been out on the factory floor.8 I shall recommend dismissal of paragraph 8(C) of the complaint. See Dobbs Houses, Inc., 145 NLRB 1565, 1571. D. The Grievances 1. Relevant provisions of the contract Article II of the contract, entitled "Recognition," read: Section 1. The term "employee" or "employees" as used in this Agreement is limited to persons within this bargaining unit who are all production and mainte- nance employees at the Warren, Ohio plant, excluding all office clerical employees, guards, professional employees, the Works Manager, superintendents, foremen, head machinist, head mechanic, and all other supervisors as defined in the Act .9 The only express substantive limitation in the contract on Respondent's right to discharge or otherwise discipline employees was contained in the following clause: ARTICLE III-NON-DISCRIMINATION Section 1. The company will not discriminate against any employee in a manner currently prohibited by Federal or Ohio State Law, such as race, religion, sex, age, or national origin, or because of his membership or non-membership in the Union. The Union agrees that neither the Union nor any of its members or agents will discriminate against any employee in any manner currently prohibited by Federal or Ohio State Law, such as race, religion, sex, age, or national origin, or engage in any union activity on the Company's time. Article XVI, entitled "GRIEVANCE PROCEDURE," read in relevant part as follows: Section 1. In the course of day-to-day operations and contact, any employee will discuss with his foreman or supervisor any matter which he feels requires explana- tion. If, as a result of such discussion, an employee decides that he has a grievance, he shall utilize the following procedure in handling of this grievance. Section 2. For the purpose of this contract, a grievance is defined as a difference arising between the Company and an individual employee or a number of specific individual employees or the Union as to the interpreta- tion or application of any of the terms of this Agreement including discharge, disciplinary suspension or disciplinary lay-off. Section 3. An aggrieved employee shall invoke the Grievance Procedure by placing an explanation of his grievance in writing, setting out the detail of his grievance, including Article and clause references, and deliver this grievance to his foreman or supervisor... . Section 4. The grievance shall then be handled in the following steps: Step 1. Within 5 calendar days from his receipt of the written grievance, the aggrieved employee and his foreman will discuss the grievance and if the employee wishes, he may bring in a represent- 1 do not pass upon a case where, although no questions were asked, the circumstances were such as to imply that an employer expected that the employee would defend or explain his actions. 9 The unit in the Board's certification, 152 NLRB 624, 628, is the same as ative of the Union to assist him or act for him. If the grievance is not settled to the satisfaction of the aggrieved employee, then he may invoke Step 2 by writing his department superintendent citing those areas in the foreman's reply which he feels are erroneous and contrary to the meaning and intent of the contract. Step 2. The aggrieved employee and his depart- ment superintendent will discuss the grievance within five (5) days from the time Step 2 is invoked, and if the employee wishes, he may bring in a representative of the Union to assist him or act for him. The department superintend- ent's answer shall be given within 7 days after the matter is discussed with him. If the grievance is not settled to the satisfaction of the aggrieved employee and the Union feels that the grievance warrants further discussion, then they may invoke Step 3 citing those areas in the Department Superintendent's reply which they feel are errone- ous and contrary to the meaning and intent of the contract. Step 3. The Union and the Works Manager will discuss the grievance within twelve (12) days from the time Step 3 is involved. The Works Manager's answer shall be given within nine (9) days after discussion with them. Step 4. If the grievance is not settled to the satisfaction of the Union in Step 3, they may invoke Step 4 by submitting a written request to the Works Manager for a meeting with a representative of the home office of the Compa- ny. For the guidance of the home office repre- sentative, the request shall state the reason why, in the opinion of the Union, the answer in Step 3 was not in accordance with the contract. A meeting shall be arranged within two (2) weeks from the time Step 4 is invoked, and an International representative, other than the one regularly assigned to the Plant, shall be present and represent the employee. The Company home office representative's answer shall be given not later than two weeks after discussion with the Union. Step 5. If no agreement is reached in Step 4, three working days after receipt of the Company's answer and before 45 calendar days after receipt of this answer, the Union may invoke strike action as the fifth and final step in the Grievance Procedure, to urge a specific redress by the Company in a current grievance which has not been settled after discussion, review and final decision by the parties in the fourth step of the Grievance Procedure. Section 7. Step 1 of this Grievance Procedure the above except that it names six categories of employees who were specifically included along with the rest of the production and maintenance employees. The first certification named the IUE as representative. It was subsequently amended to name the IUE and its Local 727. 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD must be invoked not later than twelve (12) days after the event out of which the grievance arose. The aggrieved employee or Union must invoke each step thereafter within seven (7) days of the Company's decision in the preceding step. burden of proving the allegations in your grievance when you met with Mr. Hover on April 26, I suggest that you again review the Contact Report that specifically describes the action in question, and then if you have further questions, that you and Mr. Jones may wish to discuss the matter further with Mr. Hover at your earliest convenience. On May 5 the Union replied that the grievance had not been satisfactorily answered at the first-step meeting since Hover had refused to answer any questions and that Step 2 was therefore properly invoked. It suggested a meeting on May 10. On May 7 Respondent wrote that the suggested May 10 meeting "would not be appropriate at this time" in view of the record of the Step 1 meeting, the contract, and Johnson's statement invoking Step 2, and it suggested that the Step I meeting be reconvened. On May 13 the reconvened Step 1 meeting suggested by Respondent was held. Johnson submitted and read a written statement describing the April 16 incident. Jones asked Hover for details of Johnson's insubordination. Hover replied that he was the supervisor in charge and Johnson had interfered with his job. Asked in what way, Hover replied that Johnson had taken two steps backwards. Johnson said, "Well this isn't true . . . This is a trumped up' charge to harass and discriminate against me because of my union membership activities." Hover demanded that he be shown how he had treated Johnson differently from how he treated anyone else, upon which Jones pointed out that Johnson was the only employee working for Hover. Pressed for more details, Hover replied only that Johnson had been insubordinate, had threatened to leave the job, had taken two steps backwards; and Church said that the insubordination charge stood. Jones said an appeal would be taken to the next step. On May 14 Johnson again filed an appeal to Step 2, stating: I am appealing my grievance to step 2 of the Grievance Procedure. The Grievance was not settled to my satisfaction. Mr. Hover stated he did not discriminate against me for union activity. This statement is erroneous and contrary to the meaning and' intent of Article III of the Contract. On May 18 Respondent returned the appeal "for further handling because you have not indicated how the Fore- man's answer is in error and contrary to the Contract. In this respect the Company calls your attention to the fact that you claimed discrimination and not the Foreman .... he did ask you to show how you were treated any differently than any other employee would' be under similar circumstances, which you did not do." On May 21 the Union wrote to Respondent as follows: In order to again expedite the grievance of Mr. Robert Johnson, without any further delay in the grievance procedure and without agreeing with your letter of May 18, 1971. The following facts are submitted as a supplement to the grievance. 1. The grievance has not been settled to Mr. John- son's satisfaction. Mr. Johnson, wants the warning removed from his record, therefore he is invoking step 2, of the grievance procedure. (grievance attached) 2. In the meeting of May 13, 1971, Mr. Hover, stated "He used profanity towards Mr. Johnson, and he Section 9. In Steps 3 and 4 of the Grievance Procedure it is understood that the Union representatives may number up to five (5) people. Section 10. In the event of the failure of either party to comply with the time limitations herein above provided, the grievance shall either be deemed to have been withdrawn or affirmatively accepted or approved, as the case may be. Article XVIII provided that the Company would not lock out employees and that the Union agreed that there would be no strike, slowdown, or other interference with production, except as provided in the Grievance Proce- dure. 2. The Johnson grievance On April 21 Johnson filed a grievance, as follows: I am involking (sic) The Grievance Procedure under Art. III Sec. 1 and Art. XVI Sec. II, in which The Co. has Errored in accussing Me of insubordination and inserted a written Reprimand in my Personal file. I request this Reprimand be Remove from my Record. On April 26 a Step 1 meeting was held, with Respondent represented by Church, the personnel superintendent, and Hover. Johnson was accompanied by Howard Jones, the Union's chief steward. Jones asked how Johnson had been insubordinate. Hover replied that he had threatened "to leave the job." Asked how the threat had been made, Hover replied that Johnson had taken two steps back- wards. He admitted that Johnson had made no verbal threat, but otherwise refused Jones' request for details concerning the incident. Church interposed, "This has nothing to do with witnesses," adding that Respondent was accepting Hover's account. He stated that he would listen to what evidence the Union had to support its claim and asked Jones whether he had any witnesses. Jones replied that a witness might be brought in later. Jones said, "We don't feel that Johnson was insubordinate, we feel he is being discriminated against and we want this removed from his record." The grievance was denied. On April 27 Johnson filed with Respondent an appeal to Step 2, which included the following explanation: I am Appealing My Grievance to Step II, of the Grievance Procedure, under Art. III, Sec. I and Art. XVI, Sec. II, in which The Co. has failed to Show Just cause in inserting a Reprimand in my Record And has Refused To Discuss in Detail The Reason's why I Received This Reprimand. On April 30 Respondent returned the document to Johnson with the following letter: We are returning the enclosed form to you for further handling since it is not a proper invocation of the second step of the Grievance Procedure. If you did not, in fact, understand that you have the UNITED STATES GYPSUM COMPANY 311 would do it again." We are not aware of any other supervisor cussing employees in their direction of the work force. This is a clear case of discrimination and is contrary to the meaning and intent of Article III, of the contract. 3. Mr. Hover, also stated "Mr. Johnson, threatened to walk off the job by taking two steps backwards." This is ridiculous and in error. Mr. Johnson, never threat- ened to walk off the job. Mr. Hover, answer is in error and again contrary to the meaning and intent of Article III, of the contract. We expect the step 2, grievance meeting to be held no later than Wednesday, May 26, 1971, in accordance with our labor agreement. On May 25 Respondent replied that since the content of the Union's letter was "not relevant with respect to the proper invocation of Step 2" and Johnson had not yet properly invoked Step 2, a meeting would not be appropriate. On May 27 Johnson submitted to Respondent his third appeal to Step 2, stating, "The following facts are submitted as the areas in the foreman's reply which I claim are erroneous and contrary to the meaning and intent of the contract." The appeal then repeated the substance of the Union's May 21 letter. On June 2 Respondent rejected Johnson's invocation of Step 2, stating that the facts in his appeal were "not relevant to the claimed discrimination as set out in Article III," 10 and that Johnson had failed to show error in the foreman's decision that the "contact" for insubordination had not been in violation of the contract. In conclusion, Respondent stated that "in an attempt to clear up this case" it was willing to meet with Johnson and his union representative at a stated time, but informally, promising to have Hover present. The parties did meet on June 7. Langewisch, Respondent's Step 2 representative, an- nounced that the meeting was informal, since Step 2 had not been properly invoked. He said that, according to Hover, Johnson had threatened to leave the job, and that that constituted insubordination. Johnson replied that he had not made such a threat, and again said that this "was a trumped up charge trying to harass and discriminate against me because of my union membership and activi- ties." Langewisch replied to the effect that Johnson had to take orders from Hover, his superior, and Respondent refused to remove the reprimand. Meanwhile, on June 3 the Union wrote to Respondent that since both parties were "requiring strict adherence to the contract," and Respondent had failed to hold a grievance meeting within 5 days after Step 2 had been invoked, as required by the contract, it was invoking section 10 of the grievance procedure, which provided that in those circumstances the grievance be answered in the affirmative, accepted, or approved. On June 8 Respondent wrote as follows: I have reviewed the procedural details of the Johnson grievance and do not find Section 10 of Article XVI applicable under the current circumstances. On June 10 the Union requested Respondent to detail the "current circumstances" referred to, and on June 14 it filed the original charge herein, alleging that Respondent had refused to bargain collectively in that, inter a/ia, it had refused to process Johnson's grievance. On June 16 Respondent wrote to the Union as follows: The current circumstances referred to in my letter of June 8, 1971, involve the fact that Mr. Johnson did not contractually invoke either Step One or Step Two within the time periods required and Company did not waive any of its rights under the Contract. The Company met informally with the Grievant and his Union Representative to assure itself that all the facts were known and that the employee had an adequate hearing despite the contractual defects... . At the hearing Daugherty testified that Johnson had not filed his Step I appeal "properly and timely" in that the contract provided that before he did so he was required to "discuss the grievance informally with his supervisor," i.e., Hover. He testified that nevertheless the grievance had been carried on to Step 1, and Respondent's answer given at the meeting of April 26. He testified, further, that Johnson had failed to meet the requirement in the second sentence of section 7 of the grievance procedure that Step 2 be filed within 7 days of that answer; that Johnson's appeal to Step 2 from the Company's April 26 decision was dated May 14, and that his April 27 appeal failed to state "the reason . . . for the invoking of step two." Johnson testified that he did not file a Step 3 appeal because Respondent's refusal to hold a Step 2 meeting made that impossible. 3. The Gilbert grievance On August 19, 1971, Gilbert, a truckdriver who had been discharged by Respondent the previous day, filed a grievance. Meetings were held for Steps 1 and 2 at which the Union was represented by McMillan, secretary of Local 727. On September 13 a Step 3 meeting was held at which the Union was represented by McMillan, Jones, the chief steward, Rinaldi, the Union's International represent- ative assigned to represent the employees at Respondent's Warren plant, and Patrick Kearney. Rinaldi introduced Kearney as a qualified International representative who would be assisting him in the area. After a short discussion of Gilbert's allegation of discrimination, the meeting was recessed to give the Union the opportunity to bring in evidence. The meeting was reconvened on September 28, with the Union represented by Kearney, Jones, and McMillan. After some discussion it was again recessed, to reconvene on October 19, when Gilbert attended, along with the same three union representatives. The grievance was again denied. Gilbert appealed, and a Step 4 grievance meeting was set up for November 10. Jones, McMillan, and Kearney appeared for the Union. Respondent was represented by Hallberg, an official from its home office, Daugherty, the works manager, Church, personnel superintendent, Coop- er, plant operations manager, and Karafa, Gilbert's foreman. Hallberg had not participated in any of the previous meetings. Daugherty said that Rinaldi had 10 In its brief Respondent argued that the irrelevancy of the content of the Union's May 25 communication lay in the fact that the contract required Johnson, not the Union, to file the Step two request. 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD introduced Kearney "as the international representative assigned to our plant" and his assistant, that Kearney had handled Step 3 meetings on the grievance and therefore did not meet the contractual requirement that the Union be represented at a Step 4 meeting by "an International representative other than the one regularly assigned to the Plant." The Union insisted that Kearney was qualified and that it was ready to proceed with the meeting. After about an hour and a half of repetitious discussion Daugherty said, "I heard that record before and we have work to do," and Respondent's representatives rose to leave. Kearney called out, "Mr. Daugherty, are you walking out?" Daugherty replied from the doorway, "You can call it what you want," and the company representative left. Twenty minutes or less later Daugherty telephoned the union hall, where the union representatives had repaired, and suggested that the meeting reconvene and proceed with the grievance. Kearney returned, accompanied by Rinaldi. He delivered to Respondent a letter signed by Rinaldi and reading as follows: This is to inform you that I am the regular staff man assigned to service the local, which represents the employees at your plant. This will be my assignment unless you are notified differently. Mr. Patrick Kearney will handle the grievance of Mr. Gilbert at the 4th step of the grievance procedure, in accordance with our contract. Mr. Kearney is an international representative not normally assigned to represent the employees at your plant. Rinaldi orally informed Respondent's representatives to the same effect. Daugherty stated that Kearney had been involved in the third step of the grievance and that the fourth step had to be handled by some one not previously involved. Kearney asked if Respondent would meet with Rinaldi. Daugherty refused, saying that he, too, had been involved in the third step, and he suggested the names of three other individuals who in the past had been International representatives.11 Kearney insisted that he himself was qualified, whereupon Respondent suggested that they get on with the meeting, that the Union could call it what it liked, but that Respondent would have to consider it an informal meeting. Kearney replied, "We are to meet only if you agree this is a formal fourth step meeting." The company representatives finally left. Rinaldi testified that only one International representa- tive was assigned to the plant and that he was the one regularly so assigned. He also testified that the importance of establishing the meeting as a formal fourth-step meeting lay in the fact that without a formal meeting the Union could not proceed to the fifth step of the grievance procedure, which was a strike. The clause in question, which was introduced into the contract in 1969, was proposed and drafted by Respon- dent. 11 At the time of the meeting two of the individuals suggested were no longer connected with the I.U.E. and the third was no longer an International representative. The record does not show that these facts were known to Respondent. Concluding findings as to the grievances Before appraising Respondent's conduct it is necessary to examine what was really at issue between the parties in the processing of the two grievances. Respondent has emphasized at the hearing and in its brief that it afforded Johnson and Gilbert full opportunity to present facts, arguments, and anything else they wished. However, so long as this was done at informal meetings Respondent could make any decision it wished, even arbitrary ones, in full confidence that the Union had no recourse. The reason was that the Union had surrendered the employees' right to strike without getting the return benefit, so frequently granted, of an arbitration clause. See Textile Workers v. Lincoln Mills, 353 U.S. 448, where the Court said "Plainly the agreement to arbitrate grievance disputes is the quid pro quo for an agreement not to strike." In lieu of arbitration Respondent had specifically agreed that Step 5 of the grievance procedure was a strike. Whether or not it was probable that the Union would resort to a strike over Johnson or Gilbert's grievance, formal meetings would have had the tendency to increase the likelihood that Respondent would decide those grievances, and others, as well, with the awareness that wrong or arbitrary decisions could ultimately result in strike action. Respondent's refusal of formal meetings was, thus, not a mere matter of technicality. What must be decided is whether that refusal was violative of Respondent's duty to confer in good faith with respect to grievances. Respondent's principal justification for refusing to process Johnson's appeals to Step 2 was that he had failed to demonstrate how the contract had been violated-in other words, to demonstrate that his discipline was discriminatory under the Act. The Union did undertake in the contract to point out at each step of the grievance procedure how Respondent's action or decision contra- vened the contract. Respondent in effect contends that the Union, by those restrictions, waived the employer's obligation under the Act to discuss grievances and questions of contract interpretation to the extent that appealing grievants failed to demonstrate that the contract had been actually violated. However, waivers of the employees' statutory rights must be clear, and I find no such waiver in this instance. The purpose of those provisions of the contract was to relieve Respondent of the obligation to apply the contractual grievance procedure to appeals which failed to indicate that the grievances were based on alleged violations of the contract.12 An employ- er's refusal to consider a grievance is violative of the Act even though it is eventually found that the grievance lacked merit. See California Portland Cement Company, 103 NLRB 1375, 1377. I do not read the contract grievance procedure as constituting a waiver by the Union of Respondent's duty to hear and consider a grievance or appeal which failed to contain actual proof of violation of the contract, or even the equivalent of a bill of particulars; nor do I read it as requiring that appeals have the accuracy of a pleading or the convincing quality of a legal brief. At 12 The contract provided, in effect, that discipline which might be considered undeserved, unfair, excessive, or otherwise unjust, but not violative of the Act or some other statute forbidding discrimination , was not subject to the contractual grievance procedure. UNITED STATES GYPSUM COMPANY 313 most the Union waived Respondent's duty to consider grievances or appeals which did not reasonably apprise Respondent that Johnson, for example, claimed that he had been discriminated against for union activities, a plain violation of article III of the contract. Johnson was an officer of the Union and the correspond- ence of the parties must be read in the light of the fact that this was known to all Respondent's officials; there was no need to state this in the grievance or the appeals. His original grievance invoked article III of the contract, prohibiting discrimination for union activities, and at the first Step I meeting Jones said, "We don't feel Johnson was insubordinate, we feel he is being discriminated against ... " Johnson's April 27 appeal also invoked article III, and at the reconvened Step I meeting on May 13 he said, referring to the charge that he had interfered with Hover's job, "This is a trumped up charge to harass and discriminate against me because of my union membership and activities." In his May 14 appeal Johnson alleged that Hover's denial that he discriminated against Johnson for union activity was erroneous and contrary to the meaning and intent of article III. In his May 27 appeal Johnson said that Hover's statement that he had threatened to walk off the job by taking two steps backwards was ridiculous and in error and "contrary to the meaning and intent of Article III of the contract." On June 27 Johnson told Langewisch that he had not threatened to leave the job and that "this was a trumped up charge trying to harass and discriminate against me because of my union membership and activi- ties." I am convinced that Respondent understood from these various statements that Johnson claimed that Hover charged him with threatening to leave the job on obviously erroneous, in fact, ridiculous, grounds-taking two steps backwards-and that he made such a charge because of Johnson's well-known union activities. I find that this was a sufficient compliance with the contractual grievance procedure and that Respondent's refusal to hold a Step 2 meeting of Johnson's grievance was not justified by the contract. In its letters of June 10 and 16 Respondent relied on still another strategem to confound the Union's efforts to utilize the formal grievance procedure. It made the belated claim that the formal Step 1 meetings, which had been held with its consent, even at its own suggestion, were merely informal meetings after all. Daugherty testified that this was on the basis of the fact that Johnson had failed, before filing his grievance, to comply with the contractual requirement-Section 1 of the grievance procedure-to discuss his grievance informally with Hover. Assuming, arguendo, the unlikely proposition that that contractual provision was a condition precedent to the filing of a grievance, especially where the matter at issue was a dispute between Hover and Johnson, it is plain that Respondent waived it and proceeded to hold the Step I meetings. Indeed, at the hearing Daugherty changed his stance and testified that "in spite of this defect" the grievance had been "processed." Respondent's failure to meet with the Union in compli- ance with the grievance procedure was more than a mere contract violation. Respondent was refusing to comply with its statutory duty, set forth in Section 8(d) of the Act, "to meet at reasonable times and confer in good faith with respect to . . . any question arising" under an agreement. The contract is relevant only to the extent that Respondent has claimed that it contained a partial waiver by the Union of the statutory safeguards . See N.L.R.B. v. C & C Plywood Corp., 385 U.S. 421, 428. Moreover, Respondent was not seeking, in good faith, to take advantage of the contractual provisions protecting it from having to deal with grievances not based on alleged violation of the contract; it was generally willing to spend time to meet with the Union so long as the meetings were informal . What Respondent was trying to accomplish in refusing to meet formally was to frustrate the Union's efforts to advance grievances so as to place it in a position, if it so decided, to invoke Step 5 of the grievance procedure. Plainly, its object was to render nugatory, to the extent it could, an important concession it had made to the Union on the basis of which"the Union had agreed to a no-strike clause without arbitration. I find that Respondent's refusal to meet formally on the Johnson grievance was in bad faith and that Respondent by such refusal violated Section 8(a)(5) of the Act. Gilbert's grievance was advanced to Step 4 but Respon- dent refused to hold a formal Step 4 meeting with either Kearney or Rinaldi as the Union's representative. It had itself drafted the clause requiring that the union represent- ative be an International representative "other than the one regularly assigned to the Plant." Rinaldi and Kearney could not both be "the one" regularly assigned, but Respondent rejected both. While I am of the opinion that Respondent was wrong as a matter of contract interpreta- tion, since the clause limits the employees ' statutory rights and the language was Respondent's own, I recognize that its position was an arguable one which an employer could take in good faith. That does not mean , however, that Respondent took it in good faith . Here, again, the question was not one of wasting time-Respondent was willing to hold the meeting. But Respondent was determined to prevent the Union, if at all possible, from reaching the position where it could advance the grievance to Step 5. Respondent's bad faith in connection with the Union's request for information and the Johnson grievance establish its disposition to frustrate the Union in its function as bargaining representative. I find that it was similarly motivated in refusing to meet formally with either Kearney or Rinaldi, and that such refusal to meet was in bad faith. I further find that Respondent thereby violated Section 8(a)(5) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE I find that the activities of Respondent set forth in the section III, occurring in connection with its operations described in section I, have a close, intimate, and substantial relationship 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. V. THE REMEDY As I have found that the Respondent has engaged in 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certain unfair labor practices, I recommend that the Board issue the recommended Order set forth below requiring Respondent to cease and desist from said unfair labor practices, and to take certain affirmative action which will effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and of the entire record of this case I make the following: CONCLUSIONS OF LAW 1. Respondent, United States Gypsum Company, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is, and at all times material has been, an employer with the meaning of Section 2(2) of the Act. 3. International Union of Electrical Radio and Ma- chme Workers, AFL-CIO-CLC, and its Local 727 are labor organizations within the meaning of Section 2(5) of the Act. 4. All production and maintenance employees of Respondent at its Warren, Ohio, plant, excluding all office clerical employees, guards, professional employees, the works manager, superintendents, foremen, head machinist, head mechanic, and all other supervisors as defined in the Act, constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. 5. At all times material the IUE and its Local 727 were, and now are, the exclusive representative of the employees in the appropriate unit for the purpose of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment, within the meaning of Section 9(a) of the Act. 6. By delaying unreasonably the furnishing of necessary information to the Union and by raising issues in connection therewith in bad faith, and by failing to process grievances in good faith, Respondent has failed to bargain collectively as provided in Section 8(d) of the Act, and has engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 7. By interfering with, restraining, and coercing em- ployees in the exercise of rights guaranteed in Section 7 of the Act Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. The unfair labor practices described above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 13 ORDER Respondent, United States Gypsum Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to furnish International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, or its Local 727, the name, address, birth date, service date, rate of pay, job classification, insurance contribution, pension contribution, and all other wage information of each employee in the bargaining unit within a reasonable time after being requested to do so by said organization. The appropriate bargaining unit is: All production and maintenance employees of Respon- dent at the Warren, Ohio, plant, excluding all office clerical employees, guards, professional employees, the works manager, superintendents, foremen, head ma- chinist, head mechanic, and all other supervisors, as defined in the Act. (b) Negotiating with the employees' bargaining repre- sentative in bad faith concerning grievances, or refusing to process grievances formally to further steps in the grievance procedure set forth in the applicable contract. (c) In any other manner failing to bargain in good faith with the IUE and its Local 727. (d) In any like or related matter interfering with, restraining, or coercing employees in the exercise of the rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) With reasonable promptness upon request, furnish the IUE and its Local 727 all wage and related information pertaining to employees in the bargaining unit. (b) Upon request, process grievances in good faith and advance them to further steps in the grievance procedure when appropriate. (c) Post at its offices and plant in Warren, Ohio, copies of the attached notice marked "Appendix." 14 Copies of the notice, on forms provided by the Regional Director for Region 8, shall, after being signed by a representative of Respondent, be posted 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 to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify said Regional Director for Region 8, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.15 IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges unfair labor practices not found herein. 13 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, automatically become the findings, conclusions, decision, and order of the Board, and all objections thereto shall be deemed waived for all purposes. . 14 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 read, "Posted Pursuant to the Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 15 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read- "Notify said Regional Director for Region 8, in writing , within 20 days from the date of this Order, what steps Respondent has taken to comply herewith." UNITED STATES GYPSUM COMPANY 315 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to furnish the Union within a reasonable time after request the name, address, birth date, service date, rate of pay, job classification, insurance contribution, pension contribution, and all other wage information, of each employee in the bargaining unit. WE WILL NOT negotiate in bad faith concerning grievances, or refuse to process grievances formally to further steps in the grievance procedure as provided in the contract. WE WILL NOT in any other manner fail to bargain in good faith with the Union with respect to wages, hours, and other terms and conditions of employment of the employees in the appropriate unit. The appropriate bargaining unit is: All production and maintenance employees of the Company at its Warren, Ohio, plant, exclud- ing all office clerical employees, guards, profes- sional employees, the works manager, superin- tendents, foremen, head machinist, head mechan- ic, and all other supervisors, as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights to self-organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities , except insofar as these rights might be affected by a contract with a labor organization, if validly made in conformity with Section 8(a)(3) of the National Labor Relations Act, as amended. Dated - By UNITED STATES GYPsuM COMPANY (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 1695 Federal Office Building, 1240 East Ninth Street, Cleveland, Ohio 44199, Telephone 216-522-3715.