Temple-Eastex, Inc.

TEMPLE-EASTEX, INCORPORATED 203 Temple-Eastex, Incorporated, its Operating Divisions Southwestern Timber Co., Inc.; Temple Industries; and Eastex Incorporated, All Wholly-Owned Sub- sidiaries of Time, Inc. and United Paperworkers International Union, AFL-CIO. Case 23-CA-5797 February 11, 1977 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On June 25, 1976, Administrative Law Judge Paul L. Harper issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed a brief in opposition 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 only to the extent consistent herewith. 1. We adopt the Administrative Law Judge's conclusion that Respondent did not violate Section 8(a)(5) and (1) of the Act by allegedly withholding from the Union information concerning the merger of Temple Industries and Eastex Incorporated into Temple-Eastex, Incorporated. We further adopt the Administrative Law Judge's finding that Respondent did not violate Section 8(a)(5) and (1) by unilaterally granting a wage increase to those woodlands employ- ees of Temple-Eastex Forests, who were employed by Temple Industries prior to the aforementioned merg- er. 2. The Administrative Law Judge further con- cluded that Respondent did not violate Section 8(a)(5) and (1) of the Act by refusing to furnish to the Union certain information, requested by letter dated October 10, 1975, relating to all hourly paid employ- ees of Temple-Eastex Forests, the timber division of Temple-Eastex, Incorporated.' He found, inter alia, that the information requested by the Union had no probable or potential relevance to the Union's statutory obligation to represent employees within its certified unit comprised of "all production, mainte- nance and forestry employees, including truck dri- 1 On December 31, 1974, the merger of Temple Industries and Eastex Incorporated into Temple-Eastex, Incorporated, was finalized Following the merger, Temple-Eastex Forests was a division comprised of the woodlands employees formerly employed by Southwestern Timber Co., Inc., previously a division of Eastex Incorporated, and the woodlands employees formerly employed by Temple Industries. 228 NLRB No. 26 vers," formerly employed by the Southwestern Tim- ber Co., Inc., division of Eastex Incorporated, or to police its current contract covering that unit. For the reasons set forth below, we find that Respondent's refusal to furnish to the Union the information requested by its letter of October 10, 1975, was violative of Section 8(a)(5) and (1) of the Act. In March 1975, the Union executed a 1-year collective-bargaining agreement with Respondent covering the above unit of employees formerly employed by Southwestern Timber Co., Inc. On July 7, 1975, the Union filed a grievance alleging that Respondent, instead of posting and permitting bid- ding on a tractor operator job pursuant to article XIV, section 5, of the contract, had assigned the position to an employee of the former Temple Industries division.2 Subsequently, according to the uncontradicted testimony of Reeves Brunk, an international repre- sentative of the Union, during an August 1975 meeting with Respondent's officials concerning this grievance, he stated: [I In processing the grievance, I asked the compa- ny what if the status of the Temple employees had changed because it appeared to me that if they were not part of the bargaining unit, then we had a question of [the] company going outside the unit to fill the vacancy, as well as not posting it. If they were inside the unit, then we had a seniority question. And Mr. Lowe [the company's representative] told me he could not answer that question. And I informed him if the Company couldn't clear it up for us, then we would have to file an unfair labor practice charge in order to get the information so that we could determine how to proceed on the grievance. Thereafter, by letter dated October 10, 1975, the Union requested Respondent to furnish the following information with respect to all hourly paid employees of the Temple-Eastex Forests division of Temple- Eastex, Incorporated: names, addresses, and social security numbers; all current job classifications and rates of pay; and all fringe benefits. The Union further sought from Respondent specific dates when it would commence negotiations concerning the merger and its possible effects on woodlands employ- ees and the Union's current collective-bargaining agreement. 2 Art. XIV, sec. 5, of the contract provides, in pertinent part. All permanent job openings in any department shall be posted in all departments for 5 working days. Any permanent employee may bid by signing the bid sheet. 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is well established that Section 8(aX5) of the Act imposes upon an employer the duty to furnish a union, upon request, information relevant and neces- sary to enable the union to intelligently carry out its statutory obligations as the employees' exclusive bargaining representative. And, under the standard of relevancy as applied by the Board and the courts, it is sufficient that the union's claim for information be supported by a showing of "probable" or "potential" relevance .3 Furthermore, the fact that the informa- tion requested by a union may, as here, in part relate to employees outside the scope of the unit it repre- sents does not necessarily justify an employer's refusal to provide such information.4 In the instant case, it is clear from the grievance filed by the Union, the above-cited testimony of Brunk with respect to that grievance, and the Union's subsequent request for information in its letter of October 10, 1975, that the information sought by the Union was relevant and necessary to the performance of its statutory obligations.5 Thus, the grievance related not only to an alleged failure by Respondent to abide by its contract with the Union, but, as expressed by Brunk at the grievance meeting in August 1975, concerned the possible erosion of unit work by Respondent. In these circumstances, we conclude, contrary to the Administrative Law Judge, that the information sought by the Union was relevant and necessary to its policing of the contract between the parties and to the intelligent processing of its then outstanding grievance. Accordingly, we find that Respondent's refusal to furnish the informa- tion requested by the Union violated Section 8(a)(5) and (1) of the Act .6 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Temple-Eastex, Incorporated, its operating divisions Southwestern Timber Co., Inc.; Temple Industries; and Eastex Incorporated, all wholly-owned subsidiar- ies of Time, Inc., Jasper, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with United Paperworkers International Union, AFL-CIO, as the exclusive bargaining representative of all production, maintenance, and forestry employees (including truckdrivers), formerly employed by Southwestern Timber Co., Inc., by refusing to furnish the said labor organization with the following information it has requested with respect to all hourly paid employees of Temple-Eastex Forests, a division of Temple-Eastex, Incorporated: names, addresses, and social security numbers; all current job classifications and rates of pay; and all fringe benefits. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations , 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 protec- tion as guaranteed by Section 7 of the Act, or to refrain from any or all such activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, bargain collectively with United Paperworkers International Union, AFL-CIO, by furnishing the said labor organization with the following information it has requested with respect to all hourly paid employees of Temple-Eastex Forests, a division of Temple-Eastex, Incorporated : names, addresses, and social security numbers ; all current job classifications and rates of pay; and all fringe benefits. (b) Post at its Jasper, Texas, place of business copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous 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 23, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 3 NLRB. v. Acme industrial Co., 385 U.S. 432 (1967). See, e.g., Curtiss-Wright Corporation, Wright Aeronautical Division, 145 NLRB 152 (1963), enfd. 347 F.2d 61 (C.A. 3,1965); Hollywood Brands, Inc., 142 NLRB 304 (1963), enfd. 324 F.2d 956 (C.A. 5, 1963), cert. denied 377 U.S. 923 (1964). S In so concluding, however, we do not construe that portion of the Union's October 10, 1975, letter requesting dates for negotiations between the parties with respect to the merger as a legitimate request for information. Accordingly, we shall not include in our Order a provision therefor. 8 See, e.g., Western Electric, Inc., 225 NLRB 1378 (1976); General Electric Company, 173 NLRB 164 (1968). 7 In the event that this 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." TEMPLE-EASTEX, INCORPORATED 205 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 United Paperworkers International Union, AFL- CIO, as the exclusive bargaining representative of all production, maintenance, and forestry employ- ees (including truckdrivers), formerly employed by Southwestern Timber Co., Inc ., by refusing to furnish the said labor organization with informa- tion it has requested with respect to all hourly paid employees of Temple-Eastex Forests, a division of Temple-Eastex, Incorporated, as hereinafter set forth in this notice. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form,join, or assist labor organizations, 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 as guaranteed by Section 7 of the Act, or to refrain from any or all such activities. WE WILL, upon request, bargain collectively with United Paperworkers International Union, AFL-CIO, by furnishing to the said labor organi- zation the following information it has requested with respect to all hourly paid employees of Temple-Eastex Forests, a division of Temple- Eastex, Incorporated : names, addresses, and so- cial security numbers; all current job classifica- tions and rates of pay; and all fringe benefits. TEMPLE-EASTER, INCORPORATED, ITS OPERATING DIVISIONS SOUTHWESTERN TIMBER Co., INC.; TEMPLE INDUSTRIES; AND EASTER INCORPORATED, ALL WHOLLY-OWNED SUBSIDIARIES OF TIME, INC. DECISION STATEMENT OF THE CASE PAUL L. HARPER, Administrative Law Judge : Hearing in the subject case was held April 7 and 8, 1976, in Jasper, Texas. On December 9, 1975 , a complaint was issued based on a charge filed, October 14, 1975, alleging violations of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., herein called the Act. All parties were afforded full opportunity to appear, to introduce evidence, to examine and cross-examine witness- es, and to file briefs. Based upon the entire record, upon the briefs filed on behalf of the parties, and upon my observa- tion of the demeanor of the witnesses, I make the following: FINDINGS AND CONCLUSIONS I. JURISDICTION Respondent has been at all times material a Texas corporation maintaining its principal office and place of business in Jasper, Texas, where it is engaged in forestry and logging operations. It is a wholly-owned subsidiary of Time, Inc. During the 12-month period preceding the issuance of the complaint, a representative period, Respon- dent sold and shipped products valued in excess of $50,000 directly to points outside the State of Texas. Accordingly, I find Respondent is, and has been at all times material, an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED United Paperworkers International Union , AFL-CIO, herein called the Union, has been at all times material a labor organization within the meaning of Section 2(5) of the Act. III. THE ISSUES 1. Whether Respondent withheld and misrepresented facts with respect to the merger of Eastex Incorporated and Temple Industries, Inc. (becoming Temple-Eastex, Incor- porated), and thereafter refused to bargain regarding the merger in violation of Section 8(a)(5) of the Act. 2. Whether Respondent, by unilaterally and without bargaining with the Union, granted a wage increase to its Temple Division employees (outside the agreed-upon bargaining unit) thereby violating Section 8(a)(5) of the Act. 3. Whether Respondent refused to furnish the Union with requested information concerning the merger and wage increase in violation of Section 8(a)(5) of the Act. The General Counsel readily agrees that any violation of Section 8(a)(5) must be predicated on a finding that the overall unit of Respondent's combined woodlands opera- tions, Temple-Eastex Forest, is the appropriate bargaining unit rather than the present contractual unit. To reach any understanding of the respective positions of the parties and the complicated issues involved herein it is necessary to attempt to unravel and at least come to a partial if not complete understanding of the various changes in the corporate structure of Respondent and its interrelationship with related corporate entities. Although never entirely clear during the hearing the pertinent corporate acquisitions and mergers are fully explicated in Respondent's brief. The relevant corporate changes are revealed as follows : Time, Inc., acquired Eastex, Incorporated, sometime in 1975 . On August 16, 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1973, Temple Industries, Inc., became a wholly-owned subsidiary of Time, Inc. Thus both Temple Industries, Inc., and Eastex, Incorporated, became wholly-owned subsidiar- ies of Time, Inc. Thereafter Time, Inc., created a new corporation entitled Temple-Eastex, Incorporated (Re- spondent herein). Stock shares were transferred from subsidiary corporations to parent corporation and then transferred to the newly created corporation. Thus in September 1973 Temple-Eastex, Incorporated, became a wholly-owned subsidiary of Time , Inc., with the sole function of serving as holding company for Temple Industries, Inc., and Eastex, Incorporated. Thereafter steps were gradually taken to integrate the woodlands divisions of Temple Industries, Inc., and Eastex, Incorporated. On December 31 , 1974, Temple Industries, Inc., and Eastex, Incorporated, merged into their parent corporation, Tem- ple-Eastex, Incorporated. This new corporation was divid- ed into these operating divisions only one of which, namely, Temple-Eastex Forests, is involved in this proceeding. To compound the already complicated interrelationships it must be noted that even this third operating division, Temple-Eastex Forests, is considered by Respondent as composed of two separate groups of employees, one group of ex-Temple employees, now designated as the Temple operating division of Temple-Eastex, Incorporated, pres- ently unrepresented by any union, and a second group of ex-Eastex (Eastex and Southwestern now being inter- changeable terms) employees, now designated as the Eastex operating division presently represented by the Charging Party Union. A. Pertinent Background On or about September 19, 1974 , the Union held its first organizational meeting among the woodlands employees of Southwestern Timber (division of Eastex Incorporated). Two employees of Temple Industries, G. W. Kilcrease, and C. B. Hooks attended, signed authorization cards, and were given additional cards to distribute to other Temple employees. Thereafter no further interest in the Union is revealed among Temple employees. On September 25, 1974, the Union requested recognition and filed a petition for certification (Case 23-RC-4146) seeking to represent employees in the following bargaining unit, with the usual exclusions: All production and maintenance and forestry employ- ees including truckdrivers employed by the employer in their Woodland Division whose main office is located at 229 North Bowie, Jasper, Texas, 75951. On October 18, 1974, the Union and Respondent signed a Stipulation for Certification Upon Consent Election. The unit description was the same as that shown in the petition except the phrase "All other employees" was added to the usual exclusions. On November 19, 1974, the election was held and on November 27, 1974, the Union was certified as exclusive representative of the bargaining unit described in the petition and stipulation. On December 19, 1974, the first of some approximate eight bargaining sessions was held. On December 31, 1974, the merger of Temple Industries and Eastex Incorporated into Temple-Eastex, Incorporated (Respondent herein) was formerly finalized. On March 10, 1975, a bargaining agreement was executed by the parties. The contractual unit is the same as described in the petition and stipulation. On or about July 7, 1975, Respondent granted a 25-cent- an-hour wage increase to its Temple woodlands employees. The bargaining unit of Southwestern Timber woodlands employees did not receive a similar wage increase at the same time. On October 10, 1975, the Union addressed a letter to Respondent stating its awareness of the corporate merger between Temple Industries and Eastex Incorporated (Tem- ple-Eastex, Incorporated) and "Because of the merger our union now represents all woodlands employees of Temple- Eastex Forest." The letter also referred to the 25-cent increase to Temple employees and requested Respondent to "make this increase retroactive to said date for all woodlands employees." Additionally the Union requested Respondent to furnish certain information including names, addresses, classifications, benefits, rates of pay, etc., relating to all hourly paid employees employed by Temple- Eastex Forest. On October 20, 1975, Respondent refused to furnish the requested information on the grounds the Union represent- ed only the contractually agreed-upon bargaining unit and therefore was not legally entitled to information pertaining to employees outside the scope of the bargaining unit. B. Contentions of the Parties One of the principal thrusts of General Counsel's theory of an alleged violation is that Respondent deliberately withheld and misrepresented facts concerning the merger of two corporate divisions of Time, Inc., viz Temple Indus- tries, Inc., and Eastex, Incorporated; that such misrepre- sentations and deception, which General Counsel charac- terized at times as fraudulent, resulted in the Union agreeing in the Stipulation for Consent Election to a bargaining unit limited to certain employees of Southwest- ern Timber Company, the woodlands division of Eastex, Incorporated (and not the more comprehensive overall unit of woodlands employees of the newly created Division of Temple-Eastex Forest) and that such conduct constituted a violation of Section 8(aX5) of the Act. Secondly, the General Counsel alleges and contends that on or about July 7, 1975, Respondent granted a 25-cent-an- hour increase to only those woodland employees who formerly worked for Temple Industries and who the General Counsel alleges are now, and should have been since the December 31, 1974, merger of Temple and Eastex, part of the overall unit of woodland employees of Temple- Eastex, Inc., Respondent herein; that such increase was made unilaterally and without consultation with the Union thus violating Section 8(aX5) of the Act. Thirdly, the General Counsel alleges and contends that on or about October 10, 1975, Respondent refused to furnish the Union information concerning the wage in- crease and the names, addresses, wage rates, fringe benefits, etc., of employees in the unrepresented Temple Division. TEMPLE-EASTER, INCORPORATED 207 Respondent, on the contrary, denies that it withheld information or otherwise deliberately deceived the Union regarding its corporate structure or the merger . It admits it granted the July 7, 1975, wage increase to employees formerly employed by Temple and not employees formerly working for Southwestern Timber but denies that this action constitutes a violation of Section 8(a)(5) of the Act. It also admits its refusal to furnish requested information on or about October 10, 1975 , contending that such information is irrelevant to any matters concerning the contractually agreed upon unit limited to woodland em- ployees formerly employed by Southwestern Timber. C. The Misrepresentation Question In support of this contention General Counsel relies heavily on the testimony of Union Respresentatives Brunk and Young regarding their conversations with Respon- dent's industrial relations consultant, Lowe. Brunk, who assisted in organizing the employees of Southwestern in the fall of 1974, testified that shortly before the election stipulation was signed he asked Lowe, in a phone conversa- tion, "what the status of the Temple employees that were coming down from Diboll , working along with Southwest Timber. Was that one company, or was it two companies? And would that [Temple employees ] be part of the unit or not be part of the unit?" Lowe responded, according to Young, "that it was two companies; that the Temple employees were employed by Temple out of Diboll. And that Southwest Timber was a separate company." Again, at the preelection conference, the day before or the day of the election, Brunk asked Lowe if any Temple employees were on the Excelsior list. Lowe replied there were none "as far as he knew" according to Brunk's testimony. Later, at a bargaining session on or about December 19, 1974, Brunk again asked Lowe "Where do the Temple employees fit in?" and received the same reply to the effect that Temple and Southwestern were separate companies. Brunk testified he continued to ask questions of this nature because he had received information that Temple employ- ees were working in the same area as Southwestern employees and in some cases "there was some interchange of supervision at this time." Still later, along the first of January 1975, again in a bargaining session, Brunk asked Lowe if there had been any change in the corporate structure that would change the status of employees in regard to the bargaining unit. Lowe, according to Young, responded "that he knew of no differences, nothing that would change anything at that point. That he couldn't tell me anything to what the company's position would be, or what their status was." Brunk then asked Lowe if he would find out and let him know. Lowe said he would but thereafter Brunk never had "any further communication with Mr. Lowe regarding this subject." Union Representative Young testified that at the first employee organizational meeting on September 19, 1974, two employees of Temple, G. W. Kilcrease and C. B. Hooks, were present. Young testified that he had heard rumors of the Temple-Eastex merger and therefore asked them many questions about their conditions of employ- ment, the area in which they worked, supervision, etc., after which he became "fairly convinced it was two separate and distinct companies." Nevertheless he gave the two Temple employees a number of authorization cards, which they signed at the meeting. Young continued, "I told them to go back. If Temple woodlands employees were interested in organizing, we'd set another meeting up . I gave them authorization cards and instruction what to do. And everyone left with many authorization cards ." Thereafter, as far as the record shows, neither Kilcrease nor Hooks nor any other Temple employee revealed any further interest in the Union. As noted above the consent election was held on November 19, 1974, and the Union certified on November 27, 1974. Thereafter, at a bargaining session on or about January 9, 1975, Young testified that he asked Respon- dent's consultant Lowe "Have there been any changes in the position of the company in the employees ' relations to each other as far as Temple and Southwestern ? And Mr. Lowe's answer was `No, there was no change'." Thereafter, during the course of half dozen or so more bargaining sessions Young testified the question of the merger was never again mentioned. The bargaining contract was signed March 10, 1975, and as heretofore noted the bargaining unit was limited to Southwestern Timber (a division of Eastex, Incorporated) woodlands employees. Lowe testified that he did not have any conversations with any union representatives prior to the date of the election. He recalled that all his dealings concerning the election were conducted with the Board agent making the investigation. He did recall that during the bargaining session on December 19, 1974, Mr. Brunk raised questions of "job classifications," the kind of work performed by various employees, where located, etc. He testified nothing was mentioned about the merger at this meeting. It was not until on or about February 7, 1975, at another bargaining session, that Mr. Brunk, according to Lowe, inquired about the constituency of the bargaining unit. Lowe testified that he told Brunk the Union "had filed their petition in the name of Southwestern Timber Company; that we had finished [furnished ) an Excelsior list on that basis; that those were the employees who voted in the election. And those people constituted the bargaining unit." Lowe was asked on cross-examination if he knew the merger of Temple-Eastex had been formalized on December 31, 1974. Lowe testified he knew generally there was a merger in the making since he had helped prepare a speech given by Mr. Temple to the employees just before the election in which the merger was mentioned. He stated he considered the possible merger to be a matter of common knowledge. In fact, on recall to the witness stand by Respondent's counsel, Lowe testified he was generally aware of proposed changes in the corporate structure of Respondent as far back as the fall of 1973. Lowe further testified that at the bargaining session on December 19, 1974 , he furnished Union Repre- sentative Brunk, upon his request, with information con- cerning wages, hours, and conditions of employment of Southwestern Timber employees. He recalled that Mr. Brunk, at the preelection conference , had merely asked if there were any Temple employees on the Excelsior list and Lowe replied there were none . At the December 19 meeting 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brunk did not ask any questions concerning the status of Temple or Eastex, according to the testimony of Lowe. Lowe impressed me as a forthright and candid witness acknowledging at one point a mistake he had made in earlier testimony. His demeanor at all times was deliberate and convincing and I fully credit his entire testimony of record. I therefore credit his denial of the remarks attrib- uted to him by Brunk and Young prior to the date of the election. Even so, were I to fully credit the testimony of Brunk and Young, I would still find Lowe's alleged responses to their questions about the corporate structure of Respondent, its acquisitions, merger of its subsidiaries, and the impact of such corporate functions on the bargain- ing unit, to fall far short of willful misrepresentation, much less fraudulent concealment or deception . In reaching this conclusion I have taken into account the obvious fact that Lowe, a nonlawyer labor relations consultant, was simply not privy to information concerning changes in corporate structure, acquisitions, mergers, etc. Undoubtedly, such corporate functions were conducted at a different level of supervision than even those officials who testified at the hearing. The General Counsel, in addition to allegations and contentions of misrepresentations on the part of Lowe, presented evidence relating to Respondent's maintenance of separate hiring facilities, pension funds, payroll offices, and former corporate names on stationery. The General Counsel contends all this was done to mislead and deceive the Union into believing Temple and Eastex were two separate and distinct corporate entities. Of course this contention overlooks the fact that Temple and Eastex were separate corporate entities, acquired by the parent corpora- tion Time, Inc., at different times. It was not until December 31, 1974, that the two entities were formally and finally merged into one corporate entity but still maintain- ing Temple and Eastex as operating divisions. Respondent readily admits that certain stationery, payroll checks, etc., of both prior corporations were continued to be used until the supply was exhausted. I see nothing more than business expediency in this action. Certainly there is no evidence in this record that such action was designed to deceive the Union. Further, I have taken into account that both Brunk and Young were aware that at least two Temple employees were interested in the Union at the initial employee organizational meeting in September 1974; that they were also aware thereafter there was no evidence of any further interest in the Union by any of the Temple employees; and the Union made no additional effort to seek to represent Temple employees. Likewise I find that the Union was aware of the close working relationship of Temple and Eastex woodland employees at all times material herein. Undisputed evidence in the record establishes that as early as the fall of 1973 Temple and Eastex woodland employees worked side by each, under general, intermedi- ate, and immediate supervision . Some of the crews were intermingled, used the same equipment, and over a period of time wages and other benefits were adjusted in an effort to coordinate the wages and benefits of both groups. The proposed merger which was finalized on December 31, 1974, had been well publicized in local newspapers and periodicals. It is clear from all the above that the Union was not only aware of the situation but had several alternative courses of action open. If the Union had been interested in represent- ing Temple employees and had obtained the required showing of interest it could have petitioned the Board for certification either in the larger overall unit of woodland employees, or if convinced there were two employers it could have petitioned for separate bargaining units. It did neither but instead petitioned for the limited unit of Eastex woodland employees. It did so, in my opinion, and I so find, because it did not have the required showing of interest among Temple employees. In any event the unit petitioned for was an appropriate bargaining unit, notwith- standing the fact that the overall unit might also have been an appropriate unit. Respondent agreed to the petitioned unit and thereafter the parties executed a bargaining agreement on March 10, 1975. Based on all the above considerations I find insufficient evidence in this record to support General Counsel's complaint allegation that "Commencing on or about January 9, 1975, until on or about July 9, 1975, Respondent withheld from the Union all information concerning the merger of Eastex Incorporated and Temple Industries" and the conclusionary allegations that Respondent thereby refused to bargain with the Union in violation of Section 8(aX5) and (1) of the Act. Accordingly, I recommend these portions of the complaint be dismissed. D. The Alleged Unilateral Wage Increase The complaint alleges, and the answer admits , that on or about July 7, 1975, Respondent granted a 25-cent-per-hour wage increase to its Temple division woodland employees. The General Counsel contends that since "the woodlands division employees, who were formerly employed by either Southwestern Timber Company (Eastex) or Temple Indus- tries Inc., comprise the appropriate unit, which the Union was certified to represent" Respondent thereby granted a wage increase to only a "portion" of the bargaining unit and in view of the fact it was made unilaterally without bargaining or consultation with the Union, Respondent violated Section 8(aX5) and (1) of the Act. It must be noted here that the General Counsel does not allege or contend that Respondent, by granting the wage increase to unrepresented employees and failing or refusing to grant such increase to those employees in the same alleged and certifiedbargaining unit, intended to discourage or encourage employees regarding union membership or in any way discriminated against employees in violation of Section 8(aX3) of the Act. It must be also noted the General Counsel does not allege nor contend that at any time material herein there has been an accretion to the existing bargaining unit. The General Counsel contends that since "the appropri- ate bargaining unit, which the Union was cert!ed to represent" (emphasis supplied) encompasses "the wood- lands division employees , who were formerly employed by either Southwestern Timber Company or Temple Indus- tries, Incorporated" such unilateral wage increase to "only a portion of the bargaining unit" constitutes a violation of Section 8(aX5) of the Act. TEMPLE-EASTEX, INCORPORATED 209 It must be noted that the General Counsel premises this contention on alleged Respondent's conduct that misled the Union and resulted in the Union's agreement to the bargaining unit encompassing only former Southwestern (Eastex) woodlands employees, excluding "All other em- ployees," etc. It has already been found that the evidence contained in this record fails to establish such alleged misrepresentations, fraudulent concealment, or deception on the part of Respondent. Moreover, the evidence clearly establishes that the Union, fully aware of the lack of interest in the Union among the employees of Respondent's Temple Industries division sought to organize and to represent only those woodland employees of Respondent's Southwestern (Eastex) division of Temple-Eastex Forests; petitioned for certification in such limited unit; agreed to such unit in the stipulation for consent election; and finally, entered into a bargaining contract with the employer with respect to only the limited unit. It is clear that the General Counsel is mistaken in contending the overall unit encompassing employees of both the Eastex division and the Temple division is the certified bargaining unit. It is also well-established prece- dent that there can be more than one appropriate bargain- ing unit among an employer's employees and that the law does not require representation in the most appropriate unit. Obviously, at the time of certification, the Board, through its Regional Director for Region 23, considered the unit petitioned for and later agreed to by stipulation of the parties, to be an appropriate bargaining unit. To find, in agreement with General Counsel, that the Union ir now entitled to represent employees of the Temple division specifically excluded by the Petition, Stipulation and Contract, would result in completely disenfranchising such employees to choose for themselves whether or not they desire union representation. This does not overlook Gener- al Counsel's argument that but for Respondent's misrepre- sentations regarding the constituency of the bargaining unit the Union would have sought to represent the overall unit. I find that the Union, as already noted, was fully aware of the close working relationships of the employees in the employ- er's two woodlands operating divisions, and with such foreknowledge voluntarily sought to represent those em- ployees of the employer's Eastex division to the exclusion of those of the Temple division. Accordingly, since the Temple division employees were not covered by the bargaining contract between the parties the Respondent was not obligated to bargain with the Union concerning the wage increase to such employees on July 7, 1975. It follows that employees under contract are not entitled to retroac- tive pay as urged by the General Counsel. Based on all the above considerations I find that the evidence of record does not support a finding that Respondent, by granting a wage increase to its Temple division employees on or about July 7, 1975, thereby violated Section 8(a)(5) of the Act. Therefore, I recommend such allegations of the complaint be dismissed.' E. Respondent's Alleged Refusal To Furnish Certain Information The complaint alleges, and the answer admits , that on or about October 10, 1975, Respondent refused to furnish the Union with requested information. The Union's letter, as already noted above, requested Respondent to furnish names, addresses, wages, eta., of employees in its Temple division. Respondent refused on the grounds that such employees were outside the scope of the contractual bargaining unit and Respondent therefore was under no legal obligation to furnish such information. The General Counsel claims that because of Respon- dent's misrepresentations relating to the merger and its effect on the bargaining unit, the Union, at all times material herein, represented all woodlands employees of Respondent and therefore is entitled to the requested information concerning the Temple division employees. Respondent points out in its brief the General Counsel does not contend the Union's request for such information was necessary for proper representation of employees in the certified bargaining unit ; that such request is in furtherance of its claim of an expanded bargaining unit to include both the Temple and Eastex divisions which directly resulted from Respondent's alleged misrepresentations and conceal- ment regarding the merger of its subsidiary corporations. The evidence of record, as already noted, does not support General Counsel's allegations of misrepresentation and concealment. The record evidence likewise does not sup- port a finding that the combined employee groups of Respondent's Temple and Eastex divisions constitutes the certified bargaining unit, or the most appropriate unit as seemingly urged by the General Counsel. The record evidence establishes only that the Union's requested, petitioned for, stipulated, and contracted for unit of Eastex division woodlands employees constitutes an appropriate bargaining unit and was so certified by the Board . The fact that the combined employee group of both the Eastex and Temple divisions might also have been an appropriate bargaining unit does not militate against the above finding. The General Counsel, in its brief, cites Hollywood Brands, Inc., 142 NLRB 304 (1963), enfd. 324 F.2d 956 (C.A.5), N.L.R.B. v. Goodyear Aerospace Corporation, 388 F.2d 673 (C.A.6, 1968), and General Electric Company, 199 NLRB 286 (1972), as authority in support of its contention that Respondent was legally obligated to furnish the Union with the requested information. In Hollywood the employer had published a wage policy letter pertaining to its Montgomery, Alabama, plant stating, in substance, that in keeping with its overall policy of paying comparable wages in all of its plants many employees would receive wage rate increases, the same rate paid by the employer in its other manufacturing plants for the same work being performed by employees at the Montgomery plant. Such policy letter was published in 1947 and had not been rescinded when in 1960 the union was certified as representative of the employees at the Montgomery plant. Thereafter, in 1961 , the parties execut- ed a bargaining contract . During negotiations for a re- I In view of such findings and conclusions Respondent's arguments of waiver, estoppel, and statutory limitations in defense of the complaint allegations appear moot. 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD newed contract the Union, in April 1962, requested permission to examine payroll records of the employer at its headquarters plant in Centralia , Illinois. The employer refused to comply with this request . Thereafter the employ- er notified the Union of its intention to put into effect a wage rate increase of 3 percent to its employees at the Montgomery plant in accordance with its policy , previously published, of coordinating such wage rates with its Centra- lia plant. The Union requested negotiations on the subject matter. Notwithstanding the Union's request the employer unilaterally put its announced wage increase into effect. The Administrative Law Judge found, with Board approv- al, that the employer had entered negotiations for a new contract with the Union "with a predetermination to renew the expiring contract in its exact terminology and language, and to make no deviation from that position whatev- er...." By taking such an adamant position the Adminis- trative Law Judge found the employer to have refused to bargain in good faith in violation of Section 8(a)(5) of the Act. Specifically, with respect to the employer's refusal to furnish the requested payroll information relating to the employer's Centralia plant to determine the parallel amounts as applied to both the Centralia and Montgomery plants, as specified by the employer's published policy letter, the Board stated at 305, fn. 2, "As the record shows that the Union's request for wage information at both plants followed Respondent's statement that it would not give its Montgomery employees a raise before one was given to its Centralia employees , we fmd, contrary to the dissent on this issue, that the Union was justified in extending its request to Centralia although it was the bargaining agent for only the Montgomery employees." The facts in the cited case are clearly distinguishable from those of the subject case. In the subject case there is no published or announced policy of attempting to coordinate wages, benefits, or other terms of employment between Respondent's Temple and Eastex divisions of woodlands employees. There is evidence that up until the contract was executed in March 1975 an effort was made at such coordination. However, after the March 1975 contract was completed there has been a conscious effort on the part of Respondent to separate the various crews of their two woodlands divisions, including immediate supervisors of such crews, although retaining integration of overall supervision. The facts in Goodyear are likewise inapplicable to the case at hand. In the cited case the Union, which represented the employer's production employees, requested information relating to an unrepresented group of research and develop- ment employees. The employer refused. The evidence revealed there had been a longstanding argument between the employer and union over the employer 's alleged assignment of employees to the research and development department who should have been assigned to production. The Board found, with court approval, that the requested information was relevant to the union's function as bar- gaining representative of the production employees. In General Electric the union had requested information concerning employees in classifications excluded from the scope of the bargaining unit . The employer refused con- tending such requested information was neither necessary nor relevant to the union's obligation to police its contract with the employer. Alternatively the employer argued that the Union was really seeking evidentiary material to support a unit clarification or amendment proceeding. The Administrative Law Judge, in the cited case, with Board approval, found that such requested information pertaining only to employees outside the scope of the existing bargaining unit, if shown to be relevant to the Union's statutory duties and obligations, need not be related directly to the employees in the bargaining unit. In the cited case the evidence revealed the Union had cause to believe that the employer was eroding the bargaining unit by transferring job functions from bargain- ing unit employees in classifications the employer contend- ed were outside the scope of the unit. Some grievances were filed but did not stop the practice . The Administrative Law Judge found the record evidence supported the Union's claim of relevancy, stating "As the standard of relevancy as applied by the Board and the courts, it is not the obligation of the Union to prove that its allegation of contract erosion is absolutely and finally meritorious. It is sufficient that the Union claim be supported by a showing of "probable" or "potential" relevance" - citing Acme Industrial Co., 385 U.S. 432 (1967). In the subject case, it is clear, from a fair reading of the Union's October 10 letter, that the requested information has no "probable" or "potential" relevance to the Union's representation of employees in the agreed upon and certified bargaining unit. Furthermore, there is no evidence in this record, nor indeed any allegation or contention, that by refusing to furnish the requested information, or by engaging in any other alleged unlawful conduct, Respon- dent has thereby attempted to erode the existing bargaining unit. Nor is there any record evidence to show the Union's need for such information in order to police its current bargaining contract with Respondent . The contract be- tween the Union and Respondent provides for only one exception to reopening negotiations during its term and that is "respecting the rates established by the company for new or substantially changed job classifications." In such eventuality specific procedures to be followed are pre- scribed elsewhere in the contract . There is no evidence herein, or contention, or allegation, that Respondent has in any manner abrogated this or any other provision of the contract. As the information sought by the Union has no relevancy to its obligations to represent employees in the existing bargaining unit, nor to police its existing bargaining contract with Respondent, I fmd the evidence herein does not support the complaint allegations that Respondent, by refusing to furnish the information requested by the Union on October 10, 1975, thereby violated Section 8(a)(5) of the Act. Accordingly I recommend such complaint allegations be dismissed. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. TEMPLE-EASTEX, INCORPORATED 211 3. The General Counsel has not established by a Section 8(a)(5) and (1) of the Act as alleged in the preponderance of the evidence that Respondent has en- complaint. gaged in unfair labor practice within the meaning of [Recommended Order for dismissal omitted from publi- cation.]