TRW, Inc.

UNITED-CARR TENNESSEE 729 United-Carr Tennessee, a Division of TRW, Inc. and Local No. 3-281 , Oil, Chemical and Atomic Workers International Union. Case 10-CA-9615 March 23, 1973 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO Tennessee . During the year preceding issuance of the complaint, Respondent had a direct outflow in interstate commerce valued in excess of $50,000 . Respondent admits, and I find, that it is engaged in commerce , and that the Union is a labor organization, within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES A. Issues On December 21, 1972, Administrative Law Judge Benjamin B. Lipton issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its 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 brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. 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 the Respondent, United-Carr Tennessee, a Division of TRW, Inc., Knoxville, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE BENJAMIN B. LIPTON, Administrative Law Judge: This proceeding was heard before me on August 24, 1972,1 in Knoxville, Tennessee, upon a complaint by the General Counsel2 alleging that the above-captioned Respondent violated Section 8(a)(5) and (1) of the Act. Comprehensive briefs filed by General Counsel and Respondent have been carefully considered. Upon the entire record,3 I make the following: FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION Respondent manufactures and sells custom ordered plastic items at its place of business in Knoxville, I All dates are in 1972 except as otherwise specified 2 The Union's charge was filed, and served by registered mail, on June 2, the complaint was issued on July 20 1 Respondent's motion to correct the transcript filed with its brief, without objection, is hereby granted It is undisputed that Respondent refused to furnish fob performance evaluation records and standards on George H. Hancock requested by the Union during the processing of a grievance relating to Respondent's denial of a merit wage increase for this employee. Such refusal to supply requested information is the sole violation alleged in the complaint. Denying the alleged violation, Respondent contends that the issue should be deferred to arbitration under the Board's Collyer doctrine,4 and that, in any case, the requested information is not relevant or necessary for the Union properly to carry out its representative duties. B. Stipulated Facts5 A collective-bargaining agreement exists between the Respondent and the Union for an effective term from December 5, 1971, to December 4, 1973. It contains, in four steps, grievance procedures culminating in final and binding arbitration. Grievances are defined as any viola- tion of the contract. In the termination clause, it is stated that "all bargainable issues are settled" for the contract term or any extension thereof. It is also specifically provided that "favoritism or Union discrimination shall be considered a contract violation and subject to arbitration." (art. I, secs. 2 and 3.) The portion of the contract covering merit increases states as follows: Where rate ranges are in effect, each employee upon completion of 6 months service on a job shall be advanced to not less than one-fourth of the difference between the top and the bottom of the rate range and upon completion of 12 months service shall be advanced to not less than one-half of the difference between the top and the bottom of the rate range. The remaining one-half of the difference shall be merit increases and shall be governed by such standards as the company may determine and apply. The Company will review the status of each employee at the end of each 6 months period after the employee has attained 12 months seniority and will inform the employee of the outcome of such employee's merit rating review and give the employee the reason or reasons why such employee has not received a merit increase. Any merit increase granted shall be equal to at least one-fourth of the rate range of the employee (until the maximum thereof is reached) fractional parts of a cent being awarded at the first increase. [Emphasis supplied ]6 4 Collyer Insulated Wire, 192 NLRB No 150 1 No testimony was taken, all facts are agreed as to authenticity b Thus, it is observed that the contract provides for automatic wage progression within the first half of the difference between the top and bottom of an employee's rate range 202 NLRB No. 112 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The above language has remained unchanged in con- tracts since about 1960.7 During negotiations leading to the present contract, the Union proposed, unsuccessfully, that the existing merit system be abandoned in favor of a fully automatic progression system.8 On January 24, a grievance was filed by Hancock and the Union asserting that Respondent violated art. I, secs. 2 and 3, noted above, relating to "favoritism and discrimina- tion," in that Respondent showed partiality to an employ- ee-relative of management by granting such employee a merit increase while denying the same to Hancock.9 Through three steps of the contract procedures, short of arbitration, Hancock's grievance was considered, reviewed, and formally rejected by officials of Respondent in dealing with agents of the Union. In Respondent's second step answer, on January 26, it notified the Union, inter aka, that Hancock's supervisor had given him a "performance evaluation" on January 12 denying the increase, had discussed the evaluation with him, and had pointed out the areas that needed improvement. During a third step meeting on February 9, the supervisor's evaluation sheet was shown to the Union, but the "evaluation system" was not produced to explain the numerical figures used in the evaluation. At this meeting, the Union made a specific request for the "job performance evaluation records" on Hancock, and Respondent refused. In a letter dated February 11, Respondent Advised the Union-"The Company can find no violation of the contract, nor a basis for discrimination. By letter of February 16, the Union requested (a) the exact reasons Hancock was refused a merit increase; (b) a copy of the supervisor's "evaluation report" on Hancock, (c) a 30-day extension of the grievance. On December 22, Respondent replied, in substance, (a) Hancock's performance did not justify an increase at the time of the last evaluation; (b) "Perform- ance Evaluation is based on a ten point scale. A score of seven point five is the minimum an individual can score to be eligible for a merit increase Mr. Hancock's total was seven point zero. Mr. Hancock was rated excellent in attitude toward fellow workers and in attendance. The other areas in which he was rated indicate average performance. An excellent rating indicates top perform- ance. Average is what is expected A merit increase is based on performance over and above what is expected"; (c) No -reason was found to extend the time limit of this grievance. On March 9, at a further meeting under the third step, the Union specifically requested the "job performance evaluation records" on Hancock, and Re- spondent again refused. Initially, on February 26, the Union requested that 7 There is no indication whether, previous to the instant dispute, any grievances were filed, or requests were made by the Union for information, pertaining to the contract provision quoted above a This proposed stipulation by Respondent, which was objected to by General Counsel on grounds of relevance but not authenticity, was rejected at the hearings subject to further study It is now admitted for purposes of general background and as pertinent to Respondent 's contention that the Union has "bargained away its rights to the information sought by agreeing to the merit provisions of the contract " 9 Hancock was then within the "remaining one-half of the difference" between the top and bottom of his rate range , and subject to merit increases "governed by such standards as the company may determine and apply " 10 Cf, Boston Mutual Life Insurance Company, 170 NLRB 1672 Hancock's grievance be taken to arbitration (step 4). Thereafter, arrangements were undertaken to select an arbitrator and schedule a hearing date. On April 26, the arbitration process was placed in a state of "limbo." On June 2, the Union filed the instant charge with the Board. On August 7, the Union informed Respondent that it dropped the arbitration without prejudice. No hearing date had been set, nor any evidence presented to the selected arbitrator. C. Conclusions 1. The Collyer question It should immediately be clarified that the issue before the Board does not involve the validity of Hancock's grievance based on his failure to receive a merit increase, but the admitted refusal of Respondent to supply the Union with the data repeatedly requested during the processing of the grievance under the contract procedures. Respondent defends first on the ground that resolution of the dispute between the parties requires an interpretation of the contract, which provides gnevance-arbitration machinery for such purpose, and should therefore be deferred to arbitration pursuant to the Collyer policy of the Board. Alternatively, Respondent contends that the re- quested information is not relevant or necessary for the Union to carry out its duties because, under express language of the contract, Respondent is accorded complete discretion to determine merit increases; thus, the Union "bargained away," or waived, any right it might otherwise have had to such information. There is no language in the contract which specifically deals with requests for data by the Union relating to grievances, or for any other purpose,io and therefore no direct question of contract interpretation by which an arbitrator is bound to resolve this issue.li As an intrinsic aspect of the collective-bargaining principle, it has long been settled that an employer has the general obligation to provide information sought and needed by the bargaining representative properly to perform its statutory duties, in conducting contract negotiations and administering the executed contract, including the handling of grievances for the represented employees.12 Viewing the factors relied upon by Respondent, including the bargaining history of the parties and the most recent contract negotiations concerning merit increases , I can find no basis for holding that the Union clearly and unmistakably waived its statutory right to obtain the requested information 13 on Hancock. While recognizing that the Board has certain discretion to defer to arbitration before exercising its 11 It is of no avail that Respondent would agree to provide the information if ordered by an arbitrator See Metropolitan Life Insurance Co, I50NLRB 1478, 1484 12 Eg,NLRB v Truitt Mfg Co. 351 US 149, NLRB v C& C Plywood Corp, 385 U S 421, and cases cited in N L R B v Acme Industrial Co, 385 U S 432, 433 And see Fafnir Bearing Co v N L R B, 362 F 2d 716, 721 (CA 2) 13 See Unit Drop Forge Division Eaton Yale & Towne, Inc, 171 NLRB 600, 601, to the effect that , even when a waiver is expressed in a contract, it must appear that the particular matter in issue was fully discussed or consciously explored and the union consciously yielded or clearly and unmistakably waived its interest in the matter , citing Rockwell-Standard Corporation, 166 NLRB 124 UNITED-CARR TENNESSEE 731 jurisdiction in deciding the merits of an unfair labor practice complaint, it is my opinion that the legal considerations raised by Respondent's Collyer defense are effectively answered in N.L.R.B. v. Acme Industrial Co, 385 U.S. 432.14 Acme similarly involved the issue of an employer's obligation to furnish requested information to the union relating to a grievance that the employer violated the terms of a contract.15 The following'excerpt from the Court's opinion is particularly significant: For when it ordered the employer to furnish the requested information to the union, the Board was not making a binding construction of the labor contract. It was only acting upon the probability that the desired information was relevant, and that it would be of use to the union in carrying out its statutory duties and responsibilities. This discovery-type standard decided nothing about the merits of the union's contractual claims. When the respondent furnishes the requested information, it may appear that . . . the grievances filed are without merit. On the other hand, even if it appears that such activities have taken place, an arbitrator might uphold the respondent's contention that no breach of the agreement occurred .... Such conclusions would clearly not be precluded by the Board's threshold determination concerning the poten- tial relevance of the requested information. Thus, the assertion of jurisdiction by the Board in this case in no way threatens the power which the parties have given the arbitrator to make binding interpretations of the labor agreement. _ Far from intruding upon the preserve of the arbitrator, the Board's action was in aid of the arbitral process. Arbitration can function properly only if the grievance procedures leading to it can sift out unmeri- torious claims. For if all claims originally initiated as grievances had to be processed through to arbitration, the system would be woefully overburdened. Yet, that is precisely what the respondent's restrictive view would require. It would force the union to take a grievance all the way through to arbitration without providing the opportunity to evaluate the merits of the claim. The expense of arbitration might be placed upon the union only for it to learn that the machines had been relegated to the junk heap. Nothing in federal labor law requires such a result. [Footnotes omitted.]is No cases have been cited to me, nor have any been uncovered in my research, in which the Board passed on the question of supplying requested information under the Collyer rule since its inauguration. It may be assumed from the Board's long experience that the occasion often arises between parties subject to grievance-arbitration procedures that, where the union requests data relating to a grievance, the grievance usually involves the interpretation of some contract clause. That such a dispute, when it comes before the Board, directly or indirectly contains a contractual 14 Supra Opinion of the Court delivered by Mr Justice Stewart on January 9, 1967 i5 There the disputed contract language giving rise to the grievance concerned the employer's right to subcontract work normally performed by unit employees The Board had ordered the employer to supply the requested data (150 NLRB 1463), which holding was reversed by the Seventh Circuit (351 F 2d 258) on the theory that the existence of a defense does not ipso facto warrant invocation of a Collyer deferral.17 Although arising before Collyer, the cogent and highly opposite analysis of the full Supreme Court in Acme must be given a full measure of respect to maintain the Board's direct enforcement of "this discovery-type stand- ard," i.e., supplying relevant information, as a vital element in the continuing process of collective bargaining between contracting parties. My finding is that where the employer withholds requested information which is potentially relevant in assisting a union intelligently to evaluate or process a grievance-unless the statutory right to such information is effectively waived in the contract-the Board's Collyer doctrine is not applicable to such an issue. Accordingly, this contention of Respondent is rejected. 2. Relevance of the data Based upon its own contract construction that it was accorded full discretion thereunder in awarding merit increases, Respondent argues that the information desired by the Union is irrelevant as to Hancock's grievance and the Union's duty to represent. In essence, Respondent is reiterating the position that the Union "bargained away" its right to such information, upon the proffered reasoning that the grievance, by the terms of the contract, could have no merit. Such contention of a contract waiver has been rejected, supra. The contract provides (as applicable to Hancock) that merit increases shall be governed by such "standards" as the Company may determine and apply. It does not state in haec verba that complete and absolute discretion is granted the Company. It appears that such "standards" were established and applied by Respondent, and that they were not disclosed to the Union. The agreement also specifies that "favoritism or Union discrimination" shall be considered a contract violation and subject to arbitration. Under the latter clause, Hancock's grievance alleged "partiality" by Respondent in failing to grant him a merit increase, while granting one to another employee related to management-possibly a disparate application of the existing standards erected by Respondent. The specific information sought by the Union were the "job perform- ance evaluation records" and a copy of the supervisor's "evaluation report" on Hancock. It is not contested that such information is available. Potentially, at least, I find that the requested information is relevant and necessary for the Union fairly to evaluate the merits of the grievance and to decide for itself whether the grievance should be taken to arbitration. In requiring the requested information to be furnished, Respondent is not thereby caused to recede from its interpretation of the contract and its decisions relating to the grievance. Nor is the holding herein to be construed as a binding construction of the provisions of the contract in dispute between the parties. On the sole issue presented, I conclude that Respondent's provision for binding arbitration of differences as to the meaning and application of the contract foreclosed the Board from exercising its statutory power ie 385 U S 437-439 17 E g , Kansas Meat Packers, a Division of Arisen Foods, Inc, 198 NLRB No 2 And cf N L R B v C & C Plywood Corp, 385 U S 421, 428-429 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refusal to supply the Union with the data it requested was ORDER 18 in violation of Section 8(a)(5). Ill. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with the operations of Respondent in section I, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes, burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3 All employees of Respondent at its Knoxville, Tennessee, operations, who are paid on an hourly or piece- rate basis, excluding guard-firemen, watchmen, cafeteria workers, quality control inspectors and clerks, clerical workers, salesmen, timekeepers, designers, draftsmen, administrative employees, chief engineer, foremen, and supervisors as defined in the Act constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material, the Union has been, and is, the exclusive collective-bargaining representative of the em- ployees in the appropriate unit. 5. By refusing the Union's request to furnish the job performance evaluation records and the supervisor's evaluation report on George H. Hancock, relating to a grievance being processed on behalf of such employee under existing contract procedures, Respondent has refused to bargain collectively with the Union as the exclusive representative of its employees, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the foregoing, Respondent has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the above findings of fact, conclusions of law, and the entire record of the case, and pursuant to Section 10(c) of the Act, I hereby recommend the following. - Respondent, United-Carr Tennessee, a Division of TRW, Inc., Knoxville, Tennessee, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Local No. 3-281, Oil, Chemical and Atomic Workers International Union, as the exclusive bargaining representative of its employees, by refusing to furnish it with requested information consisting of the job performance evaluation records and the supervisor's evaluation report on George H. Hancock. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Furnish, upon request, to Local No. 3-281, Oil, Chemical and Atomic Workers International Union, the job performance evaluation records, and the supervisor's evaluation report on George H. Hancock. (b) Post at its Knoxville, Tennessee, plant, copies of the notice attached hereto as "Appendix." 19 Copies of said notice on forms provided by the Regional Director for Region 10, shall, after being duly signed by Respondent, be posted immediately upon receipt thereof, in conspicuous places, and be maintained for a period of 60 consecutive days. Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 10, in wasting, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 18 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 prodded in Sec 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 19 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 a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 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 bargain collectively with Local No. 3-281, Oil, Chemical and Atomic Workers International Union, as the exclusive bargaining representative of our employees, by refusing to furnish it with the requested information consisting of the job performance evaluation records and the supervisor's evaluation report on George H. Hancock. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL, upon request, furnish to Local No. 3-281, UNITED-CARR TENNESSEE 733 Oil, Chemical and Atomic Workers International Union the job performance evaluation records and the supervisor's evaluation report on George H. Hancock. UNITED-CARR TENNESSEE, A DIVISION OF TRW, INC (Employer) 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, Peachtree Building, Room Dated By 701, 730 Peachtree Street, NE, Atlanta, Georgia 30308, (Representative) (Title) Telephone 404-526-5760.