The E. W. Buschman Co.

E. W. BUSCHMAN CO. The E. W. Buschman Company and Shopmen's Local Union No. 522 of the International Asso- ciiation of Bridge, Structural and Ornamental Iron Workers, AFL-CIO. Case 9-CA-21630 31 October 1985 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 27 June 1985 Administrative Law Judge Richard L. Denison issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, The E. W. Buschman Company, Cincinnati, Ohio, its officers, agents, successors, and assigns, shall take the act ion set forth in the Order. Bruce H. Meizlish, Esq. and Anthony L. Shehan, Esq., for the General Counsel. William K. Engeman, Esq. (Taft, Stettinius, and Hollister), of Cincinnati, Ohio, for the Respondent. Robert E. Sturgill, Esq., of Cincinnati, Ohio, for the Charging Party. DECISION STATEMENT OF THE CASE RICHARD L. DENISON, Administrative Law Judge. This case was heard at Cincinnati, Ohio, on 3 May 1985, based on an original charge in Case 9-CA-21630 filed by the Union on 11 January 1985, The complaint, issued 19 February 1985, alleges that the Respondent has violated Section 8(a)(1) and (5) of the Act by failing and refusing to comply with the Union's 6 December 1984 request for financial data, and its 19 December 1984 request for in- formation from employee production records, which the Union seeks for the purpose of evaluating and processing an arbitrable grievance concerning the Respondent's dis- continuance of its annual Christmas bonus. The Respondent's answer denies the allegations of unfair labor practices alleged in the complaint. On the entire record in the case, including my consideration of the briefs and observation of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION 189 Based on the allegations of paragraphs 2 and 3 of the complaint, admitted by the Respondent's answer, I find, respectively, that the Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and ('7) of the Act, and that the Union, the Charging Party, is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES The facts which give rise to this dispute are, for the most part, undisputed. The Respondent manufactures conveyors at its facility in Cincinnati, Ohio. The Charg- ing Party, the Union, has represented the Respondent's production and maintenance employees since at least 1965.1 The most recent in a series of collective-bargain- ing agreements became effective on 7 August 1984. For many years the Company had regularly paid its employ- ees annual Christmas bonuses, as reflected in successive editions of the employees' handbook, which states in rel- evant part: Some years ago the Company instituted the prac- tice of giving each employee a Christmas Bonus. This was done in appreciation of our employees' loyalty and team work in performing their tasks ca- pably and efficiently. The amount of the bonus is determined by the length of time an employee has been with the Company. We intend to continue this bonus each year and with your full cooperation in giving a day's work for a day's pay, you are insuring yourself of receiv- ing this at Christmas time. Beginning with the 1971-1974 contract, the Christmas bonus issue was resolved through a series of letters of understanding, which were addenda to the agreement. Each of these letters renewed the expressed intention of the Respondent to pay the annual Christmas bonus. Thus, similar letters were executed as a part of the con- tract negotiations in 1974 and 1984. The 7 August 1984 letter of understanding, executed in conjunction with the signing of the most recent collective-bargaining agree- ment extending to 6 August 1987, conditioned the pay- ment of the bonus "provided that the results of the em- ployees' joint effort and the Company's performance during the year warrant payment of bonuses to the Shop Employees and other personnel." This language was agreed to against a background of economic difficulties encountered by the Company during the recent econom- ic recession, and a large indebtedness incurred for a new modern facility. ' The collective-bargaining unit is: All production, maintenance and shop janitorial employees employed by (the Company] but excluding office clerical employees, drafts- men, engineering employees, erection, installation and construction employees, and watchmen, guards and supervisors as defined in the Act 277 NLRB No. 21 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On 5 December 1984 Respondent Executive Vice President Leo Roell called the office of Local 522 and requested a meeting with the Union in the plant superin- tendent's office that afternoon "regarding a matter of ur- gency." The meeting convened between 2 and 2:15 p.m. Roell, Production Manager Dick Anderson, and Person- nel Manager Ann Nicholson were present for the Com- pany. The Union was represented by Business Agent Robert E. Sturgill, Chief Shop Steward Woodrow L. Osborne, Assistant Chief Shop Stewart Tony Sanzere, and Departmental Steward Ron Webb.2 The meeting started with Roell stating that the Company was in "a very binding situation" because they had a problem with the loan that had been obtained for the new building, and the Company's cash flow was the lowest in history. He also said there were problems with late deliveries, in- ventory, and other problems. He remarked that the bank was requiring the Company to make certain financial de- cisions and commitments. He stated that they had decid- ed not to pay any dividends to the stockholders for that year, and only the minimum amount to the nonbargain- ing unit employees' pension fund which was allowed by law. Then he said they were not going to pay any Christmas bonus to either the nonbargaining unit or bar- gaining unit employees. He asked the shop committee not to talk to members of the bargaining unit about this decision until they had received a letter the following day with their paychecks explaining the Company's rea- sons for their decision. Then the union representatives asked questions, including whether there were other cuts that could be made. They referred to what they deemed to be wasteful expenditures by the Company, associated with 14 to 17 acres of new company property, $500,000 in office furniture, and other spending the Union deemed in "bad taste" under the circumstances. The Company continued to insist that the cuts they were making were essential to the Company's future. In the end, the com- mittee maintained its.concern over the necessity of the measures the company officials had announced they in- tended to effectuate. On 6 December the Respondent published a lengthy letter to its employees, which it distributed in the pay en- velopes. It was announced, in pertinent part: Because of heavy overruns of moving expenses, costs associated with the relocation, startup costs and loss of production, the Company is experienc- ing a heavy negative cash flow problem. The only way to solve this problem is to reduce expenditures in all phases of the Company's oper- ations. We have implemented a number of cash con- servancy programs . . . . As unpleasant as it is, we must reduce the Company's contribution to the Office Retirement Fund to the minimum and elimi- nate year end bonuses for all employees. 2 SturgiIl and Osborne were the only witnesses to testify at the hearing in this matter. They were called by the General Counsel Their testimo- ny, not strongly challenged, is credited The Respondent rested without putting on any evidence. We ask your understanding and cooperation in helping the Company reestablish a stronger cash po- sition. On 6 December 1984, following a consultation with Local 522's accountant, George Engle, Sturgill sent a hand-delivered letter to the Respondent requesting spe- cific financial information in accordance with Engle's in- structions. In relevant part it stated: Regarding our meeting on December 5, 1984, concerning the Company not paying the shop em- ployees the Annual Christmas Bonus. Please be advised that in order for the Local Union to intelligently present the Company's posi- tion to the membership we are requesting the fol- lowing specific information in writing: 1) A complete Company financial statement of expected profit and losses for the period of Decem- ber 1984. 2) A complete Company financial statement of the expected profit and losses for the first quarter of the year 1985. 3) A complete list of cash disbursements, and/or expected cash disbursements for the last quarter "1984" and the first quarter of 1985. " 4) A complete list of expected cash revenue for the period of the month of December 1984, and the first quarter of the year 1985. 5) A complete list of the jobs on hand, deliv- ery due dates, and the net worth of each. 6) A complete list of jobs the Company has bid on, or expects to bid on, and the net worth to the Company. Sturgill did not receive a specific response to this letter, nor did he ever receive the requested information. The Union filed a grievance on 11 December 1984, on behalf of all its members, claiming that the Respondent breached its contract with the Union in that the failure to pay the Christmas bonus was contrary to the terms of the letter of understanding of 7 August 1984. Shortly before the third-step meeting pertaining to that griev- ance, which took place on 19 December 1984, Sturgill hand-delivered a second letter to the Company reiterat- ing the Union's earlier request. It also asked for further information in order to properly and intelligently dis- charge its obligation to represent the bargaining unit em- ployees concerning what the Union deemed to be a con- tract violation. In addition, since the letter of agreement attached to the contract was phrased in terms of the em- ployees' efforts and the Company's performance, the Union also asked for "the shop employees' daily produc- tion records beginning January 1, 1984 through Decem- ber 1984," and "the Company's complete financial state- ment of expected profit and losses for the period January 1, 1984, through December 1984." At the 19 December meeting, Roell espoused his con- cern that the information the Union was seeking was confidential. He expressed a desire to have this data re- viewed only by the Union's accountant. Sturgill respond- E. W. BUSCHMAN CO. ed that he felt the bargaining unit employees would have to have access to the data in order to persuade them that the Company did indeed have a cash flow problem. He said they would not be otherwise satisfied. The meeting ended with no agreement. On 27 December Sturgill re- ceived a letter from Roell, which was a recapitulation of the 19 December meeting, and the Company's answer at step 3 of the grievance procedure. Roell stated that the Company did not agree with the Union's position. He re- ferred to the specific language of the 7 August 1984 letter of understanding, which he interpreted to mean that the Company had no contractual obligation to pay the bonus to the shop employees if they did not pay it to other personnel. The letter ended with the statement that the grievance was without merit and was denied. On 28 December Sturgill received a letter, dated 27 December 1984, from the Respondent's attorney, William K. Enge-' man, noting his concurrence with the Company's posi- tion at step 3 of the grievance procedure, and further stating, "therefore, in my view, your information re- quests are totally irrelevant to any issue between the par- ties involving the interpretation of the letter of under- standing." On 8 January 1985 Sturgill gave notice to the Compa- ny of the Union's intent to arbitrate the grievance. On 9 January he wrote a response to Engeman's letter of 27 December. The letter explicitly sets forth the Union's legal position that the Company's action constituted a unilateral change in the employees' wages and working conditions in violation of the contract, and that since the Company's reasons for its actions were expressed in terms of severe cash flow problems and performance re- sulting in an inability to pay the annual Christmas bonus, the Union needed the requested information in order to assess its position. The letter concluded by notifying the Company that the Union would seek the assistance of the National Labor Relations Board by filing unfair labor practice charges. The charge in the instant case was filed on l 1 January 1985. Thereafter, there were efforts by the Company and the Union to negotiate an agreement concerning the con- fidentiality of the information the Union sought, but these efforts were unsuccessful. The Respondent argues that it never refused the Union's requests for the infor- mation sought. It claims that it was willing to supply the information, subject to an agreement of confidentiality designed to protect the data from perusal by third par- ties. The Respondent also urges that since the issue which gave rise to this dispute, i.e., whether the Compa- ny violated the agreement by discontinuing the bonus, is the subject of a grievance soon to be arbitrated, the in- stant case should be deferred by resolution by the arbi- trator. The General Counsel contends that the Union has a statutory right to the requested information in order to fulfill its duty as collective-bargaining representative of the unit employees with respect to the pending grievance over the discontinuance of the Christmas bonus.3 The a The complaint does not include, and the General Counsel specifically disavowed, any claim that the discontinuance of the bonus violated the Act Consequently, I make no findings in this respect 191 General 'Counsel also urges that the Respondent has failed to prove the need for maintaining the confidential- ity of the information. In NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956), and in NLRB v. Acme Industrial Co., 385 U.S. 432 (1967), the United States Supreme Court long ago held that an em- ployer's duty to bargain in good faith, as required by the Act, compelled it to supply information needed by its employees' collective-bargaining representative to carry out its obligations under the contract. This obligation to provide information continues throughout the contract's term so as to permit the employees' representative to properly police the collective-bargaining agreement, in- cluding the processing, evaluation, and disposition of grievances. The bargaining representative's entitlement to such information is a statutory right proceeding from the Act. Thus, if the requested information is relevant to the performance of the Union's statutory responsibilities and necessary to assist the Union in carrying out its duties, it must be supplied unless some overriding coun- terconsideration, such as Respondent's claim of confiden- tiality, has been proven. In the instant case, the relevancy of the data requested is obvious. Indeed, the Respondent does not strenuously contest either the relevancy or the Union's right to the information under the circumstances presented. The Re- spondent does claim, technically, that it has never re- fused to supply the information sought. I am not im- pressed with this argument, since it is clear that over a protracted period of time the information requested has never been supplied. Turning to the Respondent's claim of confidentiality as a defense to its failure to supply the data the Union seeks, I further find that the Respondent has not substantiated its claim. It is well settled that a union's entitlement to relevant information, under the general rule of law, may not always prevail over all competing situations, and that the bargaining agent's need for the information must be weighed against the le- gitimate interests of the employer. A claim of confiden- tiality is one of these interests. Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979). However, the Board has re- cently reaffirmed the principle that the party asserting the claim of confidentiality has the burden of proving the validity of that claim. Washington Gas Light Co., 273 NLRB 116 (1984). In the instant case the Respondent rested without introducing a scintilla of evidence in sup- port of its confidentiality claim. Moreover, in arguing its claim of confidentiality, the Respondent does not distin- guish between the financial information requested, which the Union feels it is necessary to discuss with its mem- bership in order to possibly arrive at an early disposition of the grievance, and the employee production records the Union requested, the accuracy of which the Union could establish or discount only by revelation and discus- sion with those it represents. These considerations render inappropriate the Respondent's contention that the issue in the instant case should be deferred for determination by arbitration. Worcester Polytechnic Institute, 213 NLRB 306 (1974). Finally, it is obvious that if the grievance over the Christmas bonus does proceed to arbitration, the Union 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cannot possibly perform a competent job of representing the employees' interests, without introducing into evi- dence some, if not all, of the information requested. Thus, under all the circumstances presented, I find that the Respondent has violated Section 8(a)(1) and (5) of the Act by failing to provide the Union with the request- ed information. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(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. 3. All production, maintenance and shop janitorial em- ployees employed by the Company but excluding office clerical employees, draftsmen, engineering employees, erection, installation and construction employees, and watchmen, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collec- tive-bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein, the Union has been, and is now, the exclusive collective-bargaining representative of the employees in the appropriate unit within the meaning of Section 9(a) of the Act. 5. By refusing to furnish the Union with all of the data requested in the Union's letters of 6 December and 19 December 1984, which information is relevant and neces- sary to the processing of the 11 December 1984 griev- ance relating to the discontinuance of the employees' Christmas bonus, the Respondent failed and refused to bargain collectively in good faith with the Union in vio- lation of Section 8(a)(1) and (5) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent engaged in certain unfair labor practices, I find it necessary to order that the Respondent cease and desist therefrom and take cer- tain affirmative action designed to effectuate the policies of the Act. Accordingly, I shall order the Respondent to furnish the Union, on request, all the data requested in the Union's letters of 6 December and 19 December 1984. I shall also order Respondent to post an appropri- ate notice. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 4 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. ORDER The Respondent, The E. W. Buschman Company, Cincinnati, Ohio, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Failing and refusing to bargain collectively with the Union as the exclusive collective-bargaining repre- sentative of the employees in the appropriate unit, re- ferred to earlier in this decision, by refusing to furnish the Union with all of the information requested in the Union's letters of 6 December and 19 December 1984, which information is relevant to the proper performance of the Union's responsibilities as collective-bargaining agent under the collective-bargaining agreement. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, and within a reasonable time, supply the Union with all the information requested in its letters of 6 December and 19 December 1984. (b) Post at its plant at Cincinnati, Ohio, copies of the attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Regional Director for Region 9, after having been signed by an authorized rep- resentative of Respondent, shall be posted by the Re- spondent immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees 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 in writing within 20 days from the date of this Order, what steps the Re- spondent has taken to comply. 5 If 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 Nation- al 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 State Government WE WILL NOT in any like or related mannner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed to them by Section 7 of the Act. WE WILL, on request, furnish Shopmen's Local Union No. 522 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO with the information it requested in its 6 December and 19 December 1984 letters to the Company. THE E. W. BUSCHMAN COMPANY