Otis Elevator Co.

National Labor Relations Board - Board Decisions

Mar 15, 1968

170 N.L.R.B. 395 (N.L.R.B. 1968)

OTIS ELEVATOR COMPANY 395
Otis Elevator Company and Local 453, Interna-
tional Union of Electrical Radio and Machine
Workers, AFL-CIO. Case 2-CA-11280
March 15, 1968
DECISION AND ORDER
By MEMBERS BROWN , JENKINS , AND ZAGORIA
On January 11, 1968, Trial Examiner William W.
Kapell issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the General Counsel filed limited
exceptions to the Trial Examiner's Decision and the
Respondent filed an answering brief in opposition
to the exceptions.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that Respondent, Otis Elevator Company,
New York, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Trial Examiner's Recommended Order.
the General Counsel on January 24,2 alleging viola-
tions of Section 8(a)(1) and (5) of the Act by Otis
Elevator Company, hereafter referred to as the
Company or Respondent.
The complaint alleges, in substance, that the
Company refused to furnish the Union certain rele-
vant and necessary data or the opportunity to ex-
amine such data to enable it to discuss and
negotiate the failure to grant a merit increase to
employee Howard Bogert. The Company, in its
answer and by virtue of a stipulation entered into at
the hearing, denies only that it was obligated to
furnish the requested data or the opportunity to ex-
amine such data.
All parties were afforded full opportunity to be
heard, to introduce relevant evidence, to present
oral argument, and to file briefs. General Counsel
argued orally at the -conclusion of the hearing, and
he and the Company filed briefs which have been
duly considered. Upon the entire record in the
case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. COMMERCE
According to the pleadings and stipulation en-
tered into at the hearing, the Company, a corpora-
tion organized under the laws of the State of New
Jersey, at all times material herein, maintained an
office, plant, and place of business in the City of
Yonkers, State of New York, and other various
places of business in New York, New Jersey, and
other States where it is engaged in the manufacture,
repair, sale, and distribution of elevators and re-
lated products. During the past year in the course
and conduct of its business operations, the Com-
pany manufactured, sold, and distributed at its
Yonkers plant products valued in excess of $1 mil-
lion of which more than $50,000 worth was shipped
from said plant in interstate commerce directly to
States other than New York. The Company admits,
and I find, at all times material herein, that it has
been an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM W. KAPELL, Trial Examiner: This
matter, a proceeding under Section 10(b) of the
National Labor Relations Act, as amended, herein
called the Act, was heard at New York, New York,
on September 11, 1967,' with all parties participat-
ing pursuant to due notice on a complaint issued by
The Company admits, and I find, that at all times
material herein the Union has been a labor or-
ganization within the meaning of Section 2(5) of
the Act.
' All dates hereafter refer to the year 1967 unless otherwise noted
Based on charges filed on April 14 and May 26, respectively, by Local
453, International Union of Electrical Radio and Machine Workers,
AFL-CIO, hereafter called the Union
170 NLRB No. 59
396 DECISIONS OF NATIONAL
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
At all times material herein, the Union and the
Company have been parties to a collective-bargain-
ing contract which, inter alia, provided for a
periodic merit review procedure (article IX, section
6) as follows:
(a) Merit increases may be granted at any
time during the year, but the status of all em-
ployees covered by this agreement will be for-
mally reviewed by the Employer every six (6)
months in the months of June and December
for the purpose of granting salary increases
where merited. Merit increases resulting from
such review will be granted in the amount of
5% for Salary Grades 1 through 5, and in the
amount of 6% for Salary Grades 6 through 10.
Any such increase will be granted within four
(4) weeks from the end of the above months.
This procedure was implemented by having each
supervisor semiannually review the quality and
quantity of work, personal performance, and ap-
plied knowledge of the employees in his depart-
ment, the results of which reviews were recorded
on IBM cards. The cards were then arranged in
order, the highest-rated employee's card being
placed on top followed by those with lower numeri-
cal ratings. The supervisor then met and reviewed
the ratings recorded on the IBM cards with a
representative of the Company's personnel depart-
ment , and posted them on a chart containing the
name of each employee, his labor grade, occupa-
tion, date of last increase (indicating whether it was
promotional or merit), the result of his previous
merit rating , his present merit rating, the indicated
band position of his present merit rating, and his
present salary. The Company then decided which
employees could and would receive merit increases
from a specified sum allocated for this purpose.
The supervisors were accorded broad latitude in as-
sessing the merit ratings of each employee, and
their decisions were also affected by other con-
siderations, which included the lack of sufficient
funds allocated to cover all merit increases of em-
ployees favorably reviewed and the employee's
receipt of a merit or promotional increase within
the previous year. Any of these factors could
preclude, but did not automatically bar, the grant-
ing of a merit increase to employees favorably
reviewed and rated.
If an employee was dissatisfied with the results of
his merit review, he had the right to discuss the
matter with his supervisor and the personnel
manager pursuant to section 6(c) of title IX of the
collective-bargaining agreement.' Whenever this
provision was invoked by an employee, the Com-
This section provided
(c) In the event that an employee is dissatisfied with the results of his
merit review, and after full discussion of the issue with his Supervisor,
LABOR RELATIONS BOARD
?any reviewed his rating and explained why he was
not granted an increase. Also, pursuant to an ac-
cepted practice, the Union could conduct an inde-
pendent investigation of the matter, including con-
tacting both the supervisor involved and the per-
sonnel department. On occasion, the Union, pur-
suant to its investigation, was successful in convinc-
ing the Company to grant increases to employees to
whom they had been previously denied.
B. The Date Concerning the Refusal of a Merit
Increase to Howard Bogert
It is not disputed that as the result of the semian-
nual review in December 1966 merit increases were
granted on January 23 to certain employees other
than Howard Bogert. The Union, thereafter, con-
ducted an investigation of the denial of a merit in-
crease to Bogert during which it was advised by the
personnel department that Bogert was not granted
an increase because he had received a promotional
increase after the June 1966 merit review but prior
to the December 1966 merit review. According to
Gordon Shine, a company employee and also chair-
man of the Union's salary unit, he approached Mr.
Liptak, a representative of the Company's person-
nel department, toward the end of January to
discuss the denial of a merit increase to Bogert.
Shine requested that he be shown the results of
Bogert's review in order to determine whether
Bogert 's recent promotional increase was the real
reason for denial of the merit increase or whether
there was some breakdown in the review itself, or
some failure on the part of Bogert that prompted
the denial of the merit increase . Liptak replied that
the Company always had refused the right to see
such information, and again refused.
Conclusions
The General Counsel contends that the data
sought herein by the Union is relevant to its bar-
gaining duties , and that, absent a clear and
unequivocal waiver by the Union of its right to ob-
tain such data, the Company is obligated to furnish
it. Respondent takes the position that it is not
required to furnish such data because it is clearly
shown to be irrelevant and immaterial to the issue
raised. It asserts that none of the factors appearing
on Bogert's IBM card or the chart to which such in-
formation was posted are relevant or material to its
refusal to grant Bogert a merit increase , that the
Union already had been apprised of the reason for
the denial of his merit increase, and that it, ac-
cordingly, had satisfied both its contractual and
statutory obligations in the matter.
Concededly, Bogert's recent promotional in-
crease did not automatically bar the granting of a
such employee may request to talk about the matter with the Person-
nel Manager , or his representative
OTIS ELEVATOR COMPANY 397
new merit increase to him; it was only one factor to
be considered in the matter. General Counsel
cogently argues that un employee's merit rating
could be so exceptionally high as to outweigh any
other factor, and if made known to the Union,
could provide a strong argument in an attempt to
convince the Company to make an adjustment in
the matter. Admittedly, there were instances when
the Company, upon the intercession of the Union,
made adjustments after denying a merit increase.
Conversely, if the merit rating was very low, and
made known to the Union, the Union could con-
ceivably be dissuaded from pursuing the matter
further and thereby avoid unnecessary negotiations.
It is now well established that a union is charged
with the statutory duty of representing employees
in the bargaining unit, and in the exercise of that
duty it has the right to information as to wages and
similar matters which are relevant to, or reasonably
necessary to, the discharge of its bargaining obliga-
tion. N.L.R.B. v. Truitt Manufacturing Company,
351 U.S. 149; Fafnir Bearing Co. v. N.L.R.B. 362
F.2d 716, 721 (C.A.2).4 Information concerning
merit increases obviously affects wage rates and is
therefore presumptively relevant to the Union's
bargaining duties. The Union therefore is not
required to show its precise relevance of such infor-
mation unless effective employer rebuttal is
presented. Curtiss-Wright Corporation v. N.L.R.B.
145 NLRB 152, enfd. 347 F.2d 61 (C.A. 3).5
I find no merit in Respondent's contention that
the information sought (the data appearing on the
IBM card and chart) contained factors which were
not relevant or material in reaching the decision
not to grant Bogert a merit increase. These factors,
as well as Bogert's promotional increase, which ap-
parently was the controlling one, affected the deter-
mination to deny him a merit increase. According
to the Company it would seem that only the con-
trolling factor was relevant and material. I do not
accept so narrow a construction of the applicable
law. All the factors affecting the determination of
Bogert's merit increase were potentially relevant in
resolving his merit increase. I therefore find and
conclude that the Company's failure to comply with
the Union's request violated Section 8(a)(5) and
(1) of the Act. To hold otherwise would empower
an employer to decide what he regarded as con-
trolling or crucial data, and then limit his obligation
to provide requested information to that extent
only.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
' The General Counsel raised the point and argued that silence in the col-
lective-bargaining agreement did not constitute a relinquishment of the
Union's statutory right to the requested information , The Timken Roller
Bearing Co v N L R B , 325 F 2d 746, 751 (C A 6), cert denied 376 U S
971 The Company, however, apparently defends only on the ground of the
ions set forth in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and
commerce among the several States and tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
Upon the basis of the foregoing findings of fact
and upon the entire record in the case, I make the
following:
CONCLUSIONS OF LAW
1. The Company is an employer engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By refusing to furnish the Union with the
requested data concerning the denial of the merit
increase to Bogert, or the opportunity to examine
such data, the Company refused to bargain with the
Union and thereby engaged in unfair labor prac-
tices affecting commerce with the meaning of Sec-
tion 8(a)(5) and Section 2(6) and (7) of the Act.
4. By the foregoing conduct, the Company has
interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in
Section 7 of the Act, and is thereby engaged in un-
fair labor practices within the meaning of Section
8(a)(1) of the Act.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices , I shall recommend that it
cease and desist therefrom and take certain affir-
mative action designed to effectuate the policies of
the Act, including the furnishing of certain informa-
tion to the Union , found relevant and necessary
herein to administer its bargaining obligations. I
find further for the reasons stated in the Curtiss-
Wright case , supra , and Goodyear Aerospace Cor-
poration , 157 NLRB 496, that the furnishing of the
requested data or the opportunity to inspect such
data is sufficient to remedy the unfair labor prac-
tices , and that the posting of the usual notice of
notification to all employees will serve no useful
purpose.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law, and upon the entire record,
it is recommended that Otis Elevator Company, its
officers, agents , successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing, upon request, to furnish Local
453, International Union of Electrical Radio and
irrelevancy and immateriality of the requested data
' Nor is that bargaining obligation restricted to negotiation and execu-
tion of collective- bargaining agreements , it encompasses postcontractual
obligations as well N L R B v C & C Plywood Corp , 385 U S 421
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Machine Workers , AFL-CIO, with Howard'
Bogert 's or any other employee 's IBM card and
chart containing the ratings and other information
used by the Company in granting merit increases to
its employees , or the opportunity to, examine such
data , when the denial of such increases is
questioned by the Union.
(b) In any like or related manner interfering
with, restraining , or coercing its employees in the
exercise of rights guaranteed in Section 7 of the
Act.
B In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act:
(a) Upon request furnish the above-named
Union with the aforesaid data or the opportunity to
inspect such data.
(b) Notify the Regional Director for Region 2, in
writing, within 20 days from the date of the receipt
of this Decision, what steps it has taken to comply
herewith.6
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "