Alenco

386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Alenco, a Division of Redman Building Products, Inc. and International Chemical Workers Union, Local 780, AFL-CIO. Case 23-CA- 7552 August 21, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On March 11, 1980, Administrative Law Judge Leonard N. Cohen issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed limited exceptions and a supporting brief to which Respondent filed n answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Alenco, a Divi- sion of Redman Building Products, Inc., Bryan, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order. i We hereby grant Respondent's. request that the transcript be correct- ed to reflect that the correct spelling of the name of its production man- ager is ()car "Beard." not "Blird- DECISION STATEMENT OF TrHE CASE LEONARD N. COHEN, Administrative Law Judge: This matter was heard before me in Bryan, Texas, on Septem- ber 20, 1979.' On July 30, the Acting Regional Director for Region 23 of the National Labor Relations Board issued a complaint and notice of hearing based on unfair labor practice charges originally filed on June 13, alleg- ing violations of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, 29 U.S.C. § 151, et seq., herein called the Act. I tlnless otherAle st atcd, all (lates occurred ill 197 t 251 NLRB No. 67 Issues 1. Whether Respondent violated Section 8(a)(5) of the Act by failing and refusing to provide certain wage data requested by the Union. 2. Whether Respondent threatened employees in viola- tion of Section 8(a)(1) of the Act. All parties have been afforded full opportunity to appear, to introduce evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Coun- sel for both parties filed briefs which have been carefully considered. Upon the entire record of the case 2 and from my ob- servation of the witnesses and their demeanor, I make the following: FINI)INGS OF FACT I- . JURISDIICTION Respondent is a Delaware corporation with its princi- pal office and place of business located in Bryan, Texas, where it is engaged in the manufacture, assembly, and distribution of metal windows and other products. During the past 12 months, Respondent, in the course and conduct of its business operations, purchased prod- ucts, goods, and materials valued in excess of $50,000 di- rectly from outside the State of Texas. Accordingly, I find that, at all times material herein, Respondent has been an employer engaged in commerce and operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 11. HE lABOR ORGANIZATION INVOL.VED Respondent admits and I find that International Chemical Workers Union, Local 780, AFL-CIO, herein called the Union, is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR I ABOR PRACTICES A. Facts Except as specifically, noted, the material facts are not in dispute. The Union has represented Respondent's pro- duction and maintenance employees employed at its Bryan, Texas, facility since approximately 1965 and Re- spondent and the Union have been parties to a series of collective-bargaining agreements, the last of which has a term from December 12, 977, to November 30. 1980. The only employees involved in the instant dispute are the approximately 13 employees employed in Group 117 in the screening department. As set forth in appendix A, section 1, of the current contract, the following minimum base rates for the period December 1977 through November 1979 for pay grades I and II are as follows: In December 1977, pay grade 1, $3.30: pay grade II, $3.40. In December 1978, pay grade 1, $3.60; pay grade 11 $3.70. 2 Rc.pitlid tl iled ai ll ou(ll 1{ . rrC t1h tranllscr lpt Iis ll)ppIlsed Ill ,jlln i% }Clh! ,l l ilc j anId i n, ,t ei ~)rl 1 the ff icli al rccrdl ALENCO 387 With the exception of a "tie-person" who is classified as a pay grade I employee and a "leadman" who is clas- sified as a pay grade IV employee, the remaining em- ployees within group 117 are classified as pay grade 11 screeners. Additionally, the current agreement also provides in article 18, section 4, that "it is understood and agreed that the Company may establish incentive rates which would result in compensation of not less than the amounts as provided in Appendix A." On Friday, March 16, Joyce Rattler, a screener in group 117 compared her pay stub with the pay stub of Sylvia Pena, a grade I processor employed in Group 116. These pay stubs appeared to indicate that both Rattler and Pena were being paid a base rate of $3.60 an hour. Additionally, Pena's pay stub indicated that she received $40.13 "incentive pay" while Rattler received $10.40 extra as "incentive pay." On the following Monday, Rat- tler complained to her foreman, Joe Salavoe, who after comparing the two pay stubs commented that there was a mistake since the extra 10 cents an hour between pay grade I and pay grade 11 should have been reflected in the "leadman" column on the pay stub. Salavoe suggest- ed that Rattler take the matter to the personnel depart- ment. That same day, Rattler ran into Alvin Phelps, a fellow employee and local union president, and spoke to him about the matter. Together they went to speak to Lonnie Carey, Respondent's payroll engineer, but were unable to do so since Carey was then preparing to leave the plant for a trip to Dallas. On Thursday, March 22, Phelps, Rattler, Union Ste- ward George Carrillo, and Steve Fischer, a special rep- resentative of the International, met with Respondent's acting personnel manager, Ronald Baker. During the course of this meeting, the union representatives com- plained that screeners in group 117 were being under- paid. Baker explained that the pay grade II screeners in group 117 were receiving their proper hourly rate and that the 10 cents an hour difference between grade I and grade II was being included in the incentive pay column. 3 The meeting ended when Baker suggested that they meet the following day at which time Respondent would have someone present who would be more famil- iar with Respondent's payroll procedures. On Friday, March 23, the same four individuals repre- senting the Union met with Baker and Oscar Baird, Re- spondent's residential production manager. 4 When ques- tioned over the discrepancy, Baird attempted to explain, as had Baker the previous day, that while the extra 10 cents an hour for skill differential did not show up as either part of their regular pay or as a separate item on :' On he eening preceding this meeling. Haker recepied a call from Carey who explained to him Ihal Ralller and I'helps had heen to see him regarding a paroll problenm 4 oth lhe (ene ral Counsel and Repoinden Is counsel in their post- hearing briefs spelled the name of Resporidenl's residential produclion manager da "HCard" oth the complailt anid Ihe anlU cr ais ,Cll a.s the official court rporter'N Iranlicrlipl pelllthe ialieC a, "IalNRaid :Ulrthlt, Re- ,piindellt's motion l corirletli the trallsCrlpl doc oli include .i rqu t that Ihe pelling of this nlame he Ih.iliged iJtasld o) the ico rl rl heflir, 1il. I carl, therefoir. (ill ;isilllC ti bolh hl tl ill l s i.e lllrrct iln their briefs regardinig the spelhig t is nic the pay stub, the employees waere nonetheless receiving it as part of the incentive pay. This explanantion did net satisfy the union representatives who pointed out that since 2 of the 13 employees in group 117 were not in pay grade II, Respondent's method permitted these employ- ees to unfairly draw upon the incentive pool. During the course of the meeting, Baird called in an accounting de- partment employee who brought in a computer printout. The union representatives scanned the printout briefly but remained unsatisfied. When Fischer asked Baird if Respondent could produce some kind of records that would help him to understand where the 10 cents an hour went, Baird answered that he would have some charts prepared which would put the facts in a more concise and easily understood fashion. Baird suggested that the parties meet again on March 30. With the exception of Carrillo, the same individuals met on Friday, March 30. At the outset of the meeting, Respondent presented a chart to the Union which alleg- edly represented the weekly earning calculations for Rat- tler and Adam Lopez, another pay grade 11 screener in group 117 for the period December 25, 1978, to March 18, 1979. Additionally, this chart also showred the pay calculations for Victoria Garcia, the grade I tie person employed in Group 117, for the weeks of March 4 thru March 18, 1979. According to this six-column chart, Rat- tler and Lopez received overpayments each week of be- tween I and 4 cents an hour and Garcia received over- payments of 11 and 12 cents an hour each week. Utiliz- ing this chart, Baker then attempted to explain Respon- dent's calculations.5 After listening to Baker's explana- tion, the union representatives indicated that they not only did not understand Baker's explanation but thex were not convinced that what Baker said was necessarily true. When Fischer asked Baird if Respondent would show him the documents on payroll and incentive pay, Baird replied that he (Baird) did not have the authority to do so and that Fischer should submit a formal written request. Fischer answered that he would do so. At some point during this meeting, apparently either immediately before or after the conversation set forth in the preceding paragraph, Baird noted that Respondent had uncovered the fact that its method of calculation re- sulted in slight overpayments and Respondent would, as it always had, correct the mistake brought to its atten- tion. Specifically, Baird stated that Respondent would in the future show the 10-cent hourly skill differential for pay grade II screeners in Group 117 in the leadman's column on the employees' weekly pay stubs and that as a result of this change there would be no further overpay- ments. s The testimony regarding this explanation was highly technical and admittedly confusing Counsel for Respondent, in his post-hearing brief. accurately summarized the testimony regarding Respondent's payroll cal- culation methods as follows "Each employee's total hours of work per week was multiplied by the 3 60 base rate The incentive standards were figured on the bases of 53 7 rate (i e, the 5360 base plus 10 cents skill differential) and employees gross pay thus consisted of his regular hours multiplied by the $3 60 rate plus the amount of the ncentlve pay earned which included the 10 cents skill differential Since the It) cents skill dif- ferential was included in the incentive rate. it did not show up on the check stubs under leadman's column " AL EN CO 3117 388 DECISIONS OF NATIONAL. LABO()R RELAI()NS BO()ARD Rattler and Phelps, in essence, both testified that Fi- scher answered that Respondent could and should place the 10 cents an hour in the leadman's column on the em- ployees' pay stubs but that Respondent should not make any other changes in the records. Baker's and Baird's recollections on this point are slightly different than those of Rattler and Phelps. Ac- cording to both Baker and Baird, Fischer objected to any change that would result in a unilateral reduction in pay until the matter was resolved to the Union's satisfac- tion. I need not resolve this dispute and will for the pur- poses of my decision treat the evidence in the light most favorable to Respondent. By letter dated April 5, Fischer, on behalf of the Union, formally requested certain information. This letter states: Dear Sirs: The undersigned, as the duly authorized employ- ee representative hereby requests a copy of the fol- lowing information: I. "Foreman's Daily Report" from December 12, 1977 to the present date of the Screening Depart- ment, Group # 117 2. Incentive Standards of the Screening Depart- ment, Group #117, in effect as of December 12, 1977 and to include any changes made in these In- centive Standards from December 12, 1977 to the present date. 3. Payroll records of all employees covered under the "Agreement" who have worked in the Screening Department, Group #117, since Decem- ber 12, 1977 to the present date. The Union hereby protests the unilateral reduc- tion of pay rates for the Screeners taken by the Company on the matter and demands that no action be instituted until agreement is reached. Failure to provide the necessary information by April 20, 1979, will be interpreted as a refusal to provide information necessary for collective bar- gaining purposes. Phelps testified that all three sets of documents re- quested in the April 5 letter would be necessary in order to determine how the employees in Group 117 were being paid. Respondent does not dispute this statement. A day or two later, Baker informed John Dulske, Re- spondent's national personnel director, of this letter and Dulske in turn instructed Baker to set up a meeting with the Union in an attempt to resolve the problem. On April 16, Phelps, on behalf of the Union, met with Baker, Dulske, and Baird. With the exception of one statement Dulske allegedly made during this conversation with reference to the course of action the Union could take if Respondent did not furnish the requested information, the testimony by the four participants at the April 16 meeting is not in dis- pute. Phelps testified at greater length and in greater detail than did Respondent's witnesses and except where specifically noted, the following account is based on his uncontroverted testimony. At the outset, Dulske asked why the Union needed this information. Phelps answered that Fischer's April 5 letter was self-explanatory. Phelps further testified that this question was repeated several times during the meet- ing and that Phelps answered that the information in- volved a problem with the screeners and that he could not give Dulske an answer since Fischer, and not he, had written the April 5 letter. Dulske answered that he did not understand since the contract gave Respondent the right to set incentive standards. Phelps replied that he was not sure that the Union, from merely looking at a few pay stubs, could verify that employees were receiv- ing at least their proper pay and when in doubt they had a right to request this type of information. Dulske and Phelps then briefly discussed the entire concept of incen- tive pay with Phelps taking the position that the majority of the employees did not favor such a plan. The majority of the remaining conversation was spent discussing the time period for which the information was necessary. Dulske asked if the parties could reach a com- promise with the Union accepting the information back to January 1979. Phelps answered that the Union would at least need the information back to December 1978 when the wage rates became effective. 6 Phelps indicated that Respondent's compromise offer was acceptable to him but that he would have to talk to Fischer before making a commitment. The subject of costs and methods of furnishing the re- quested information was also discussed. Phelps testified without contradiction that, when discussing the Union's request for the information dating from December 1977, Dulske stated that it could be expensive and asked if the Union was willing to pay for it. Phelps answered that the Union would certainly consider it.7 Dulske also testified without contradiction that, during this portion of the discussion, he asked Phelps how the Union wanted the information. Phelps answered that Re- spondent should just pile and tie the records up in car- tons and send it to the Union. Dulske answered that they would do just that but that there might be some delay since Respondent was then undergoing a year end audit. I credit both Phelps' and Dulske's testimony regarding the matters set forth above. As noted, neither account is controverted and both versions appear to be merely dif- ferent portions of the same conversation. A controversy does exist, however, over one small segment of this meeting. According to Phelps, after he had indicated that the Union had the right to the infor- mation, Dulske stated, "Yes, you're right and you prob- ably know your rights too about going to the Labor Board to get this information, but if you keep insisting on all the information, you know this stuff costs us a lot of money, we'll make it hard on you, you're going to have to wind up going to the Board to get this informa- tion and it could take years to get this information." l)lsk tslificd lthait n this pr inl hi further st.ltcd ithai , if the tililr Iosllld sOillit priohlclll aftter rcltcsi\llg Ihe rord, frml D)ecemnh r 1976. Rcp mdlcil v,iould he illilng t dicu, IIt all, l I hey hid heet rilig. o gl hbck further iii Iti l I)uIlsks iiied liT a. llt h ' ti i t r he h.aring, he had no idea htn Tlli ll 'mphlsc, \crt a,,igL'd 1 growp 117 I)ulske slited thai the uiLhtlh r I MIfCICId Clllt1\ e L a 1il L d lii t been lI' lrCe from 2 Ilo 1(X) ALENCO 389 Dulske specifically denied ever mentioning the Labor Board at any time during this meeting with Phelps. Ac- cording to Dulske, after Phelps mentioned that the Union had certain rights, Dulske agreed adding that Re- spondent also had rights. Dulske further stated that he informed Phelps that the Union could go to court at any time and that the courts would have to decide on the va- lidity of the Union getting the information. Neither Baker nor Baird who were present at this meeting testi- fied on this matter. I need not resolve this issue since, as discussed infra, contrary to the General Counsel's con- tention, Phelps' version of Dulske's remark neither amounts to an independent violation of Section 8(a)(1 ) or evidence, in these circumstances, of Respondent's bad faith in refusing to furnish the requested information. Although the subject was not discussed at this April 16 meeting, sometime during that same week, Respon- dent changed its method of recording group 117, pay grade I's employees' wages by placing the extra 10-cent- an-hour skill differential in the leadman's column of the pay stubs." On the evening of April 16, Phelps talked to Fischer by telephone and Fischer instructed Phelps to inform Baker that the Union would remain with its original pro- posal of seeking the information back to December 1977. On the following day, Phelps so informed Baker and, by letter dated April 17, Dulske, on behalf of Respondent, gave its written response to the Union's April 5 request. This letter states in its entirety: On Monday, April 16 we met with Mr. Alvin Phelps, President of the International Chemical Workers Union Local 780, and discussed your letter of April 5, 1979 to Mr. Ron Baker. The result of the meeting is appended below. 1. We would supply the information you require a. foreman 3-part form for Group 117, Depart- ment Screen b. incentive rates for Group 117, Department Screen c. payroll records for Group 117, Department Screen 2. This information will be supplied for the period December 1, 1978 through March 31, 1979. 3. The information will be supplied to the Presi- dent of Local 780 in a reasonable period of time. We received word by phone today (April 17, 1979) that you want the information as outlined in your letter of April 5. This is not what we agreed to in our meeting with the local union president (Mr. Alvin Phelps). We will supply you with the payroll records as they apply to Appendix A and Section I and Sec- tion 2 and Article 18 Section 4 of the Article of Agreement dated December 12, 1977. This will be done in a reasonable period of time. If you have any further questions feel free to call us. # Presumably, his change would hae firsl been reflected on the pay stubs given to employee, (on Frida,. April IX In mid-May, Phelps, Fischer, Rattler, and Union Ste- ward Young met with Dulske, Baird, and Baker. During the course of this meeting, Fischer asked Dulske if Re- spondent were going to supply the information requested in its April 5 letter. Dulske replied that they would only supply what was in his April 17 letter. Dulske then read from his letter the information to be furnished.9 By letter dated May 29, the Union, through Fischer, notified Respondent that it was seeking to arbitrate its grievance over Respondent's alleged "unilateral reduc- tion of pay rates for screeners in group #117." No fur- ther action relating to this grievance has been taken by either party at the time of hearing. Dulske and Fischer met for the last time preceding the hearing on September 13. During the course of this meeting, Dulske repeatedly asked Fischer if the griev- ance on the unilateral reduction of pay rates was based on its April 5 grievance. On each such occasion, Fischer responded that it was. At one point during the discus- sion, Dulske asked Fischer if he would reconsider and accept Respondent's offer of the requested information for the period December 12, 1978, to March 31, 1979. Fi- scher answered Dulske by asking the question of what guarantee he would have that, if the Union found some- thing wrong, it would be able to go back to the records dating from December 1977. Dulske answered that, if the Union claimed a discrepancy from a review of the De- cember 1978 to March 1979 documents, Respondent would be willing to discuss the possibility of subsequent- ly furnishing the earlier material. Fischer replied that he would need a guarantee that the Union would receive the information dating from December 1977 before it could accept Respondent's compromise offer. At the time of hearing, none of the requested informa- tion had been supplied to the Union. B. Contentions of the Parties The General Counsel contends that the instant case presents a straight forward refusal by Respondent at all times to furnish the Union relevant information regard- ing wages of employees which it represents. In this regard, the General Counsel argues that Fischer's use of the phrase in his April 5 letter "the Union hereby pro- tests the unilateral reduction of pay rates for screeners taken by the Company on the matter" simply refers to the Union's belief, as discussed with Respondent in the meetings of March 23 and 30, that Respondent may not have been paying employees in group 117 the wages called for by the contract. Further, the General Counsel argues that the phrase in Fischer's April 5 letter reading "and demands that no further action be instituted until agreement is reached" refers simply to its concern that Respondent, pursuant to its claim that it was in fact making overpayments, would take corrective action ' In point 2 of the Union's April 5 letter, the Union seeks "incentive standards of the screening department." Respondent, in its April 17 letter, agrees to furnish "incentive rates." While this difference in language was not fully explained at either the hearing or in the counsels' post-heanng briefs, the Union in various discussions after Apnl 17 in effect modified its original proposal and accepted Respondent's characterization of the documents to be furnished as "incentive rates." ALENCO 389 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which might include docking the employees' wages for any such alleged overpayments that may have occurred in the past. Respondent's position is not so easily describable. First, Respondent contends that the Union initially sought certain information in connection with Rattler's specific grievance relating to whether she and other pay grade 11 screeners in group 117 were receiving the pay rates set forth in the contract and that Respondent at all times indicated a willingness to furnish all the requested information which could be relevant to such a griev- ance.' 0 Respondent next argues that, when at the March 30 meeting, it exceeded to the Union's demand and ex- pressed its intention to correct the problem by showing the extra 10-cent-an-hour differential on the pay stubs under the leadman's column, the Union, fearing that em- ployees would receive no further overpayments, modi- fied, expanded, and asserted a new claim. In this regard, Respondent alleges that the Union's contention in its April 5 letter that Respondent made "a unilateral reduc- tion in pay rates" refers only to Respondent's announced intention to correct its method of computing the incen- tive rates, an action undeniably within its sole authority under the contract. Under this theory, the Union had no legal right to pursue a grievance relating to incentive pay calculations and computations. Finally, Respondent argues that, even if the Union had such a right, Respon- dent offered to furnish the only information relevant to such a grievance. Again, it contends that any information preceding December 12, 1978, is not relevant on the question of whether employees were paid according to contract. In support of this theory, as well as its contention that the Union has exhibited bad faith throughout, Respon- dent relies on the following factors: (I) the specific lan- guage in the Union's April 5 letter, (2) the fact that on several occasions Union Officials Phelps and Fischer reaffirmed their position that the information was sought in connection with the processing of a grievance over "unilateral reduction of wages," (3) the Union's demand for arbitration over the alleged unilateral reduction, (4) the Union's arbitrary conduct in refusing to accept Re- spondent's offers of relevant information, and (5) the Union's adopting of inconsistent positions before the Board. " 'o Under Respondent's theory, no wage information preceding Decem- ber 12, 1978, could possibly be relevant to this initial grievance since during the first year of the contract, December 12, 1977, to December 12, 1978, all employees in group 117 were classified as grade I. " The body of the original charge filed on June 13 reads, in part: On May 10th, 1979, Mr. John Dulske . . . refused to provide the employees bargaining representative with information requested on ALENCO's incentive rates and foreman 3-part form, Group 117 Screen Department, This information was requested in writing on April 5th, 1979 because of a grevience [sic] that was initiated protest- ing the unilateral reduction of pay rates for the Screeners. This gre- vience [sic] is now pending arbitration and the study on the complete Incentive Plan along with the above mentioned requested informa- tion should be made available to the employee representatives in order to provide the information necessary for collective bargaining purposes in this matter. The first amended charge filed on July 12 merely reads: Since on or about April 5, 1979, the above-named employer, by its officers, agents, and representatives, has refused to bargain with the IV. CONCLUSIONS A. The 8(a)(5) Allegation Neither the operative facts nor the relevant legal pre- cedents support, in my view, Respondent's theory of the case. As the Board stated in Andy Johnson Co., Inc., 230 NLRB 308, 309 (1977): It is well established that wage and employment information pertaining to bargaining unit employees is presumptively relevant for the purposes of collec- tive bargaining and contract administration inas- much as such information concerns the heart of the employer-employee relationship, and that such in- formation must be provided upon request to the unit employees' bargaining representative.2 In addi- tion, it is well settled that a union is not required to show the precise relevance of such requested infor- mation unless the employer comes forth with effec- tive rebuttal.3 2 Western Elecric,. Inc., 225 NLRH 1378 (1976); lrotel Enter- proses. Inc.. d/b/a Royal Inn of South Bend, 224 NLRB 811) (1976) WarIhouse Foods, A Dvviion oJ' M. E Carter and Company. Ic.. 223 NLRB 506 (1976); Dynamic Machine Co., 221 NLRB 1140 (1975). Building Construcrion Employers Association of Lincoln, Nbraska and M W Anderson Construcrrion Co., 185 NLRB 34 (1970); Cowles Commnunicationv. In(., 172 NLRH 19(19 (1968) Curtiss-Wright Cor- poratiln. Wright 4Aeronautical Division, 145 NI.RB 152 (1963), cenfd 347 F 2d 61 (C.A 3 1965) ' Curtiss-Wright Corporation. Wright A,4ronautical Di_.. upra at 69 We note that the unfair labor practice charge filed by the Union stated, inter alia, that "the requested information is relevant to the needs of Local #114 in determining whether the contract has been adhered to, and helher there is a basis for filing a gries- alice under the agreement." Respondent makes no claim that the three types of documents requested would not be absolutely necessary to the Union in making a determination whether the em- ployees in group 117 were paid according to the terms of the contract. Likewise, Respondent makes no claim that the infor- mation would be burdensome or time consuming to gather or would have the probability of causing econom- ic injury to it. 12 Respondent instead, as set forth above, bases its de- fense on a claim that the Union sought the information solely with regard to a grievance over the method Re- spondent utilized in computing, calculating. and report- ing on the employees' pay stubs the incentive rates, which by contract, was a matter left solely to its discre- tion and authority. Additionally, Respondent contends INTERNATIONAL CHEMICAL WORKERS UNION, LOCAL 780. the representative of the Employer's employees in a unit appro- priate for collective bargaining, by refusing to furnish the above- named union with information necessary to the union's performance of its duties as the collective bargaining representative of those em- ployees. 1 See Western Massachusetts Electric Company. v. N.L.R.B., 589 F2d 42. 47 (1978). As noted above. Dulske testified that even at the time of the hearing, he had no idea of the number of employees in group 117 Additionally, the Unlion on several occasions indicated a willingness to at least discuss paying the costs of gathering and copying the requested in- formation ALENCO 391 that in any event the documents sought for the period of December 12, 1977, to December 12, 1978, are irrelevant to any legitimate purpose or right that the Union may have as the bargaining agent of the affected employees and that the Union's refusal of its offer to furnish the rel- evant information for the period of December 12, 1978, to March 31, 1979, excused it of any liability in this matter. With regard to the purpose of the Union's requesting the information, the evidence establishes that Respondent was well aware at the time it received the Union's April 5 letter that the Union had serious doubts that Respon- dent was paying its group 117 screeners the wage rate provided for in the contract. That Respondent's explana- tions offered at the March 23 and 30 meetings did not alleviate such doubts is not surprising in view of the complexity of Respondent's method of calculating as ex- plained at both these meetings'" and at hearing. In fact at both of the March meetings, the union representatives requested additional documentation which would demon- strate exactly what pay rates the employees involved were receiving. In response to Fischer's oral request at the March 30 meeting, Respondent's representative told Fischer that Fischer should make such a request in writ- ing. Five days after this meeting, the Union filed such a request. Respondent now contends that the purpose of the re- quest as submitted had changed and was now limited to merely protesting Respondent's mechanistic change in its method of calculations. Even viewing the evidence at the March 30 meeting in the light most favorable to Re- spondent, its interpretation of the Union's April 5 letter is not, in these circumstances, reasonable. The Union's letter specifically protests the alleged unilateral reduction of pay rates taken by Respondent. As Respondent read- ily concedes it only announced an intention to change its method of calculation at the March 30 meeting. No such change was actually made for at least 2 to 2-1/2 weeks. 1 4 Notwithstanding both the fact that when in discussing Rattler's grievance at the March 30 meeting Respondent had specifically told the Union to file its request for in- formation in writing, ad the clear language of the re- quest itself, Respondent chose to give the Union's re- quest a highly technical and innovative interpretation raising for itself certain legal defenses. Respondent, how- ever, did not share this interpretation with the Union at either the April 16 meeting with Phelps or in its written reply of April 17. In fact, no evidence was presented that it ever prior to hearing informed the Union why it did not feel legally obligated to furnish any of the requested information. Instead, Respondent continued to assure the Union that it would furnish the information but only for the period December 12, 1978, to March 31, 1979. It is 13 In this regard, I note that the chart prepared by Respondent for the Union's use at the March 30 meeting was totally inadequate in explaining its payroll calculations. 14 That he Union's use of the past tense in protesting action already taken by Respondent was not attributable to sloppx draftsmanship is readily apparent from a reading of the second phrase of the same para- graph where the Union further demands that no further action be institut- ed until an agreenment is reached curious that in these circumstances Respondent never communicated its position to the Union.' 5 Further evidence that Respondent did not treat the Union's request as limited to areas which it believed were strictly within its sole discretion and authority under the contract is demonstrated by the time periods it specified in its April 17 letter. Respondent offered to fur- nish the information sought for the period December 1, 1978, through March 31, 1979. The information offered could not have materially assisted the Union in investi- gating a unilateral change that did not take place until at least April 16. Additionally, contrary to Respondent's contention. I conclude that neither the Union's demand for arbitration nor the language in the original and first amended charge evidence any shifting of the Union's positions with regard to the need for the information. Likewise. Re- spondent has presented no evidence that the Union's re- quest for information was not made in good faith for the purpose of collective bargaining. Based on the record before me, it is apparent that Respondent's defense in this regard is a product of afterthought and late inven- tion. Even if Respondent were correct in its belief that the Union sought the information solely with regard to Re- spondent's mid-April change in its method of calculating incentive pay, it is abundantly clear that the Union's un- derlying purpose was nonetheless to determine how em- ployees it represented were paid and whether Respon- dent was complying with the specific terms and condi- tions of the contract. Respondent cannot rely on a con- tract provision giving it the exclusive right to "establish" incentive rates to thwart the Union's right to police the contract. Furthermore, the specific provision in the con- tract relied on by Respondent significantly also provides that these incentive rates will not result in compensation less than the contract minimums. Accordingly, in these circumstances, the Union, even under Respondent's theory of the facts, was seeking the information for a le- gitimate purpose of bargaining or grievance filing. The Brooklyn Union Gas Company, 220 NLRB 189 (1975). Moreover, Respondent was fully apprised at the hear- ing of the Union's purpose in seeking the information. The Union's request is still outstanding t6 and its contin- ued failure to comply can no longer be attributed to an inadequacy of communications. t 7 In Building Construction Employers Association of Lin- coln, Nebraska and M. W. Anderson Construction Co., 185 NLRB 34 (1970), the Board, in finding that the employer violated Section 8(a)(5) by their failure to furnish the union with relevant wage data, rejected the employer's "s See the .4 S A.4bell Company, 230 NLRB 1112 1114(1977) iR Contrary to Respondent's contention the record does not demon- strate that the Union ever refused to accept an offer by Respondent to supply part of the information sought What the Union did refuse to accept was Respondent's offer to furnish some of the information on the specific condition that the Ulnion would not subsequently seek further in- formation absent first a shos. ing to Respondent', satisfactilon that the re- cords demonstrated noncompliance b Respondent ith the pas proiis sions of the conttract 11 Connectoiur Light and Per Company. 229 NLRB 1032. 1035-1036 (1977) Ohso Po(wur (mpanvr. 216 NLRB 987. 990-991, fn 9. (1975) ALENCO 391 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD claim that the union's requesting wage data for a period of some 24 months covered by an expired agreement, could have no bearing on the Union's administration of the existing contract. Here, the union requested wage data of 16 months, the entire period of which was cov- ered by the current agreement. On the bases of the foregoing, I conclude that the in- formation requested by the Union in its letter of April 5 and as modified in discussions with the Respondent on April 16 and thereafter is relevant and essential to the performance of its obligations as the bargaining represen- tative of Respondent's employees. Respondent has not asserted any valid reason for its refusal to provide the in- formation requested by the Union. Accordingly, I con- clude that, by failing and refusing to provide such infor- mation, Respondent refused to bargain collectively in good faith in violation of Section 8(a)(5) and (1) of the Act. B. The Alleged Independent 8(a)(1) Violation Even viewing Phelps' testimony concerning the April 16 meeting in the light most favorable to the General Counsel, I do not view Dulske's remarks as establishing an independent violation of Section 8(a)(1). In these cir- cumstances, Dulske's remark which was made in the course of negotiations over a grievance was no more than a statement reflecting the Union's legal right to avail itself of the Board's process to obtain the requested information. It was neither threatening nor coercive. Ac- cordingly, I shall recommend dismissal of that allegation. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY Having found that Respondent has committed an unfair labor practice, I will recommend that it be or- dered to cease and desist therefrom and to take certain affirmative action designed to effectuate the purposes and policies of the Act. Specifically, I will recommend that it be ordered to provide the information requested of it by the Union relating to wage data for employees employed in group 117 for the period December 12, 1977, to April 5, 1979. CONCLUSIONS OF LAW 1. The Respondent, Alenco, a Division of Redman Building Products, Inc., is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. International Chemical Workers Union, Local 780, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. At all times material herein, International Chemical Workers Union, Local 780, AFL-CIO, has been the ex- clusive representative for purposes of collective bargain- ing of the employees in the following described unit: All production and maintenance employees, includ- ing plant clericals, shipping and/or receiving clerks, inspectors, leadmen, warehousemen and dye makers employed at Bryan, Texas facility, excluding tempo- rary employees, office clerical employees, produc- tion control employees, salesmen, over the road drivers, guards and watchmen and supervisors as defined in the Act. 4. Since on and after April 16, 1979, Respondent has failed and refused to provide the aforesaid collective-bar- gaining representative with information relating to wages of certain employees employed in group 117 and, in so doing, has violated Section 8(a)(5) and (1) of the Act. 5. Respondent has not threatened its employees as al- leged as paragraph 14 of the complaint. Upon the foregoing findings of fact, and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER' 8 The Respondent, Alenco, a Division of Redman Build- ing Products, Inc., Bryant, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with International Chemical workers Union, Local 780, AFL-CIO, by re- fusing to furnish it with wage information for the period of December 12, 1977, to April 5, 1979, for employees employed in group 117. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the purposes and policies of the Act: (a) Furnish the Union, in writing, the wage informa- tion requested by it for employees employed in group 117 for the period of December 12, 1977, to April 5, 1979. (b) Post at its Bryan, Texas, facilities copies of the at- tached notice marked "Appendix."' 9 Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by Respondent's rep- resentatives, shall be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 con- secutive days thereafter, in conspicious places, including all places where notices to employees are customarily 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 provided 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 aived fr all purposes A In the eent that this ()rder 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 Pursu- allt to a Judgment of the United States Court of Appeals Enforcing an Order of' the National lIabor Relatiotns Board" ALENCO 393 WE Wll I NOT in any like or related manner in- terfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. WE wII.I. upon request. bargain collectively with International Chemical Workers Union. Local 780, AFL-CIO, by furnishing to the above-named labor organization as the exclusive representative of our employees in the bargaining unit described below, foreman's daily reports, incentive rates, and payroll records for employees employed in group 117 for the period December 12, 1977, to April 5, 1979. The bargaining unit is: All production and maintenance employees, in- cluding plant clericals, shipping and/or receiving clerks, inspectors, leadmen, warehousemen and dye makers employed at our Bryan, Texas facili- ty, excluding temporary employees, office cleri- cal employees, production control employees, salesmen, over the road drivers, guards and watchmen and supervisors as defined in the Act. At ENCO, A DIVISION OF REDMAN BUn I)- ING( PRODUCIS, INC. posted. Reasonable steps shall be taken by Respondent to insure that 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 the Respondent has taken to comply herewith. IT IS ASO RECOMMENDED that insofar as the com- plaint alleges matters which have not been found herein to have violated the Act, the complaint is hereby dis- missed. APPENDIX NoriCI TO EMPI.OYES POSIuD BY ORDIFR or THI. NATIONA. LABOR REIATIONS BOARD An Agency of the United States Government We WI.l. NOT refuse to bargain collectively with International Chemical Workers Union, Local 780, AFL-CIO, as the exclusive bargaining representa- tive of our employees by refusing to furnish said labor organization with foreman's daily reports, in- centive rates, and payroll records for employees employed in group 117 for the period December 12, 1977, to April 5, 1979.