Sun Oil Co., of Pennsylvania

National Labor Relations Board - Board Decisions

Sep 16, 1977

232 N.L.R.B. 7 (N.L.R.B. 1977)

SUN OIL COMPANY OF PENNSYLVANIA
Sun Oil Company of Pennsylvania, Inc. and Oil,
Chemical and Atomic Workers International
Union, Local 8-933. Case 4-CA-7880
September 16, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On December 1, 1976, Administrative Law Judge
Anne F. Schlezinger issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief. The General Counsel,
and the Charging Party filed an answering brief and
filed a brief in opposition to Respondent's excep-
tions.
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
and to adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Sun Oil Compa-
ny of Pennsylvania, Inc., Marcus Hook, Pennsylva-
nia, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order.
DECISION
STATEMENT OF THE CASE
ANNE F. SCHLEZINGER, Administrative Law Judge:
Upon a charge filed on February 25, 1976,1 by Oil,
Chemical and Atomic Workers International Union, Local
8-933, herein called the Charging Party or the Union, the
General Counsel of the National Labor Relations Board,
by the Regional Director for Region 4 (Philadelphia,
Pennsylvania), issued a complaint and notice of hearing on
April 30. The complaint, as amended at the hearing, alleges
that the Respondent has, since on or about February 3,
failed and refused to furnish the Union with certain
requested information regarding employee earnings, and
thereby refused to bargain with the certified representatives
of its employees in violation of Section 8(aX5) and (1) of
the National Labor Relations Act, as amended. In its
answer, duly filed, the Respondent admits some of the
factual allegations of the complaint, raises certain affirma-
tive defenses, and denies that its conduct was violative of
the Act.
Pursuant to notice, a hearing was held before me in
Philadelphia, Pennsylvania, on July 12, 13, and 29. All the
parties appeared at the hearing and were afforded full
opportunity to be heard, to examine and cross-examine
witnesses, and to introduce relevant evidence. At the close
of the hearing the parties waived presentation of closing
argument. Subsequent to the hearing, the General Counsel
and the Charging Party filed briefs and the Respondent
filed a posttrial memorandum on or about September 7,
which have been fully considered.
Upon the entire record in this case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is, and has been at all times material
herein, a corporation duly organized under, and existing by
virtue of, the laws of the Commonwealth of Pennsylvania.
It is engaged in the refining of various petroleum products
at its facility located in Marcus Hook, Pennsylvania.
During the past year, the Respondent, in the operation of
its business, had gross revenues exceeding $500,000, and
sold goods valued in excess of $50,000 directly to
customers located outside the Commonwealth of Pennsyl-
vania. The complaint alleges, the Respondent admits, and I
find, that the Respondent is, and has been at all times
material herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent admits, and I find
that Oil, Chemical and Atomic Workers International
Union, Local 8-933, is, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges that the Union, on or about
February 3, requested that the Respondent furnish it with,
inter alia, the following information: (a) hourly rates of
pay; (b) when working overtime, hourly rates paid; and (c)
last time each employee received a general wage increase,
merit increase, or bonus, and amount thereof. The
complaint also alleges that the Respondent, since on or
about February 3, has failed and refused, and continues to
fail and refuse, to supply such information.
The Respondent in its answer raises a number of
defenses, including contentions that there was substantial
question whether the Union continued to request the
information; that the information does not exist and is not
t All dates hereinafter refer to 1976 unless otherwise indicated.
232 NLRB No. 2
7
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
available in any form; that the Respondent has no legal
obligation to furnish the information as it is neither
relevant nor necessary to any stated union purpose, and
has not been requested in bad faith but for purposes
unrelated to any legitimate collective-bargaining obliga-
tions; that the materials where in existence contain
information which if revealed would constitute an unwar-
ranted invasion of the privacy of certain employees to
whom it relates and would also compel the Respondent to
breach confidences entrusted to it by supervisors and unit
employees; and that the alleged failure to provide the
information would constitute a grievance subject to the
contractual grievance and arbitration provisions, the
Respondent is ready and willing to submit the instant
dispute to final and binding arbitration, and the Board
should therefor defer any action as to the complaint
pending such disposition.
The Respondent also argued vigorously at the hearing
that the issue herein was limited to the negotiations
regarding a wage reopener, and objected that testimony
about events occurring since the issuance of the complaint
related to the negotiations on a new contract and was
outside the scope of the complaint. These objections were
overruled at the hearing. On the basis of its claim of
surprise at the scope of the complaint, however, the
Respondent's request for an adjournment during which to
prepare its defense was granted over the General Counsel's
objection. The Respondent restates its position in the
memorandum, citing as one basis therefor that the Union's
charge alleges that the Respondent refused to supply the
Union "with certain information it requested in connection
with wage re-opener discussions between the parties .... "
The charge, however, bases the claim of an unlawful
refusal to bargain on the ground that the Respondent "has
failed and refused to supply the Union with relevant wage
information regarding all employees within the bargaining
units (Unit A and Unit B) involved. Such information
including names, classifications, hourly rates of pay,
overtime rates and dates of last increases (general, merit
and bonuses) including the amounts thereof is required by
the Union to enable it to formulate contract demands and
to negotiate general salary increases, adjustments and/or
ranges." The rulings made at the hearing in this matter are
hereby affirmed, and the issue is found to be the
Respondent's refusal to furnish the Union with certain
information about employee earnings at all times since on
or about February 3.
The Respondent's employees had been represented in a
single unit by Sun Refinery Salaried Employees' Associa-
tion, referred to herein as the Association. On November 3,
1975, the Board certified the Union as the representative of
the Respondent's employees in the following two units:
Unit A: All janitors, grounds keepers, draftsmen,
surveyors, process engineering technicians, engine
lab technicians, secretaries, clerks, office machine
operators, and medical technicians, excluding all
other employees, guards, and supervisors as
defined in the Act.
2 Finney testified that an increase in 1974 for a 7-percent ment budget, of
which I percent was for bonuses, also provided an increase in the bracket
Unit B: All senior instrument technicians, instrument
group leaders, fire marshal assistants and special
project mechanics, excluding all other employees,
guards, and supervisors as defined in the Act.
Thereafter the Respondent and the Union agreed to abide
by the collective-bargaining agreement entered into by the
Respondent and the Association, which was effective by its
terms until June 30, 1976.
The General Counsel called as witnesses Mitchell
Barnik, an International representative who assists the
Local herein and certain other locals in various matters
including contract negotiations, and Russell Finney, who
has been employed by the Respondent for 28 years, since
1965, as senior instrument technician, and who, under the
Association, was the representative of the instrument
department, grievance committee chairman, and a member
of the executive board and of the negotiating committee,
and, after the Union's certification, has served as the
representative of the instrument department, the chairman
of the grievance and negotiating committees, and a
member of the executive board.
The Respondent called as its witness Lewis Charnock,
who was senior zone engineer in the Respondent's
maintenance department, and became the Respondent's
senior labor relations representative a little more than 4
years ago. He represents the Respondent in negotiations
with the Union, and previously negotiated with the
Association.
B. The Union's Requests for Information
As described by Finney, the Respondent classifies
employees by jobs, and brackets employees in a step
progression rating, with minimum and maximum salary
rates at each grade level. Finney, a member of Unit B,
testified that it has four salary levels, with three steps in
each level; that the steps move at 6-month intervals to a
total of 18 months; and that when the third level is
acquired, there may be a 10-percent addition to that level
based on merit. Employees are evaluated annually, and are
given ratings ranging from A to E. Finney's last rating was
B. He received a 4-percent merit raise above step 3 of level
3.
The parties stipulated that those in the same department,
in the same job classification, getting the same base salary
and the same performance rating, A or B, can and do get
different merit increases. Individual merit increases are not
publicized and the Union is not notified of them before or
after they are given. Likewise bonuses are not publicized
nor the Union notified of them. An employee who is at the
maximum in his grade cannot receive a general or merit
increase unless his bracket is increased sufficiently.2
Bonuses, however, are in disregard of brackets, and range
from a minimum of $300 to a maximum of 10 percent of an
employee's salary.
Wage proposals of the Respondent may be for a general
increase or, as Charnock testified, "various combinations"
of increases at the several step levels up to the top bracket,
merit increases, and bonuses. These proposals are not in
maximums of 5-1/2 percent, limiting those at the top of the bracket to a 5-
I/2-percent increase.
8
SUN OIL COMPANY OF PENNSYLVANIA
dollar amounts, but in terms of percentages of the payroll
on a base date to be allocated for merit increases and
bonuses, with the continuation of the bonus plan negotiat-
ed for the succeeding calendar year and wage reopeners
negotiated generally for a fiscal year. The cost of the
package to the Respondent is, as Charnock testified, "not
necessarily discussed." Distribution of merit increases and
bonuses is made, as the contract provides, at the discretion
of the Respondent. The Respondent did not inform the
employees' representative of the total dollar amount to be
expended as a result of an increase, of the amounts earned
by named individual employees, of which employees were
given merit increases or bonuses, of the amounts given any
particular employees, or of the dates on which they were
received by employees.
The Association representatives on several occasions
made requests for information as to the amounts given to
individual named employees. When Charnock refused on
each occasion to furnish such information on the ground
that the Respondent was not required to do so, the
employee representatives accepted that as the fact, and
negotiated and executed agreements without such informa-
tion being furnished. After the Union became the bargain-
ing representative, the parties agreed that the contract
negotiated by the Association, effective by its terms until
June 30, 1976, would continue in effect. It provides that the
parties may negotiate from time to time as to matters of
mutual interest and as to a wage reopener.3 Barnik testified
that the negotiations on the wage reopener had been in
limbo from June 1975 because of the question of represen-
tative status. After the certification, the Union decided it
would make a counterproposal to the Respondent with
regard to the wage reopener.
The Respondent and the Union agreed to hold regular
meetings on the first Wednesday of each month, with
regard to Unit A in the morning and Unit B in the
afternoon. The Respondent's representatives included
Charnock, Sidner for Unit A, and Dwyer for Unit B. At the
first such meeting on December 3, 1975, Robinson, as
chairman of the union negotiating committee, asked for the
weekly and hourly wage rates, general and merit raises, and
bonuses given to named individuals, and the dates they
were given. Barnik testified that the union representatives
asserted that this information was needed "to formulate a
proposal, a counter-proposal, to the company's wage
proposal . . . to formulate an equitable wage package."
The Union offered to put the request, made at both the
Unit A and Unit B meetings, in writing.
This was done in letters of December 8, 1975, from
Robinson to Sidner and Dwyer. These letters, introduced
into evidence by the Respondent, request, in order to deal
properly with the wage reopener negotiations, "the wages
(either expressed by hourly, weekly or monthly rates) ...
who received a bonus and the amount. This request is for
monies given in 1975." Robinson discussed the matter with
the Respondent. They agreed to hold a joint meeting for
both groups on December 18, 1975, to clarify the Union's
request. At that meeting the Respondent asked about the
I The contract provides that each party may "initiate negotiations for the
sole purpose of considering a general salary adjustment and/or an
adjustment in the salary ranges. ... "
need for the information. The Union claimed it needed to
know individual salaries to formulate proposals on over-
time rates, merit increases, and bonuses. The Respondent
stated it would check with counsel and advise the Union if
any such information was to be provided. Finney made the
same request for information at a monthly meeting on
January 7.
C. The Respondent's Refiusals To Furnish
Information
1. Testimony presented by the General Counsel
Sidner and Dwyer notified the Union in letters dated
January 13 of "the weighted average weekly salary" of the
employees in each group. Barnik, in a letter dated
February 3, informed Charnock that the information
furnished did not assist the Union in formulating "a
realistic wage proposal," that the Respondent was required
by the Act to furnish the information requested and the
Union would submit the matter to the Board if the
information was not received within 7 days from receipt of
its letter, and that the information was: (1) names of all
employees in the bargaining unit both A and B groups; (2)
their classifications; (3) hourly rates of pay; (4) when
working overtime, hourly rates paid; and (5) last time each
employee received a general wage increase, merit increase,
or bonus, and amount of same.
Sidner and Dwyer responded, in letters dated February
9, that the wage reopener negotiations, as agreed to before
the Union's certification, concerned "only an increase in
the salary ranges and/or general salary adjustments" and
not "individual wage rates"; and that their letters of
January 26 to Robinson, which Barnik might not yet have
received, contained "all the relevant information" the
Union needed. 4 The letters of January 26 referred to a
request for information in Robinson's letter of December 8,
1975, that was discussed at the meeting of December 18,
1975, and attached materials that "contain all the informa-
tion" needed by the Union "during the current 'wage re-
opener' negotiations." These materials included total
weekly salaries; gave, in percentages and total dollar
figures, the increases due to reclassification to the level-step
salary progression structure, projected merit, and projected
increase due to reference; set forth the dollar amount of
"Projected 'total weekly salary after reference adjust-
ments"; and attached tables showing salary increase
guidelines and the level-step salary progression structure
for certain categories. There was no information as to
salaries, overtime rates, merit increases, or bonuses re-
ceived by named individuals. The Union filed its charge on
February 25.
Barnik testified that, at the regular meeting on May 5, he
asked if the Respondent had any response to the Union's
request for wage information, and was told the Respondent
had nothing more than was already provided. There were
meetings on May 4 and 24 and June 4 to set the ground
rules for contract negotiations and to discuss matters of
mutual interest. On June 4, Finney again asked Dwyer for
4 Barnik learned of the January 26 letters sent to Robinson some time
after February 9.
9
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the wage information and, on June 9, hand delivered a
letter to Dwyer referring to the June 4 request for
information as to salaries, merit increases, and bonuses the
committee needed "to intelligently draw up a wage
proposal for your consideration."
Dwyer's reply of June 21, hand delivered at the
bargaining table, stated in regard to the request for "The
salary of each employee in Unit 'B' either by the week or
hour," that a list was enclosed showing the salary of each
employee "grouped with those of other employees located
on jobs in the same Job Level." As to the request for the
employees "To whom a merit increase and/or a bonus was
given in the past year and the amount given," the letter
stated:
Supplying the data requested in the above item "B"
would destroy the long-standing confidentiality of
individual employee merit pay increases and perfor-
mance bonus awards. The Union must fully understand
that such a loss of confidentiality would make any
conceivable merit pay and/or bonus award plan totally
unworkable and, therefore, unacceptable. We fully
expect the confidentiality of our merit pay and/or
bonus plan to remain. However, if ever the plan's
confidential aspects were lost, the Company would be
left with little or no choice but to seek a "single rate"
system under which all single rates would be located at
Step III of existing salary levels.
Having made very clear our objections to furnishing
data in the form requested in item "B", we invite your
Committee to further discuss with us its needs in this
regard, thereby seeking with us a mutually satisfactory
solution.
Negotiations for a new contract began on or about June
16. The parties met at times daily, with a total of about 15
meetings up to June 30. In some of these sessions the
parties discussed both contract terms and the wage
reopener. During these sessions, the Union requested the
wage information as to named employees repeatedly.
Barnik testified that the Respondent, on or about June 25,
gave the Union the salaries of groups of employees and, on
June 29, the salaries related to names of employees, from
which the Union could figure out the overtime rates, but
that the Respondent did not furnish the information as to
the last general wage increase, merit increases, or bonuses
of individual employees, which the Union at the time of the
hearing was still seeking to obtain. He asserted that the
information in question is necessary for the Union, as the
certified representative, to represent the employees; that it
cannot formulate a wage proposal not knowing who
received merit increases or in what amount; that it cannot
decide if a bonus should be part of a general wage increase
not knowing which employees can get a bonus but cannot
get a merit increase because they are at the top of their
wage bracket; that it cannot determine the Respondent's
total outlay on wages without knowing about merit
increases; and that it cannot administer a collective-
bargaining agreement without knowing which employees
received such increments and in what amounts in view of
the Respondent's total discretion under the contract in the
allocation of merit increases and bonuses. Barnik main-
tained on cross-examination that there was a continuing
request for the information with respect to both the wage
reopener and the contract negotiations. He admitted the
Union made a contract wage proposal.
2. Testimony presented by the Respondent
Charnock, the Respondent's only witness, testified that
he was present at seven wage negotiations with the
Association which covered merit increases and bonuses;
that the Association asked repeatedly for the amount each
individual would get as a merit increase or bonus; that "we
would always say, 'No.'-that part of the offer of the merit
was the confidentiality of the individual's amount of
merit-that was confidential between he and his supervisor
or the company and the employee. And the union always
acquiesced to that.... We will tell you how much the
total bargaining unit package is going to be as a total lump
sum and we will come back at the end of the period and tell
you what our performance is, whether or not we gave out
all that we projected, as a total number-but we will not
tell you on an individual basis...." Charnock could not
recall what was said, if anything, but testified he under-
stood each time that the employee representatives ac-
quiesced.
Charnock testified that, at the meetings with the Union
as to both units on December 3, 1975, one of the items
discussed dealt with "overtime retroactivity due to the
implemented wage increase that had occurred during the
period of certification"; that the Union said the salaries
were adjusted but not the overtime as scheduled; that
management said they would look into the matter; that
Barnik "then requested that we supply the exact ...
amounts of retroactive payments due"; that he told the
Union he could not furnish that because it was known how
many hours of overtime each man had worked so the
Union could determine from the amount of the retroactive
increase what the base salaries were, "and this is something
which is confidential between the company and the
employee"; that Barnik asked if that meant the Union did
not know what each man was earning, and he replied,
"That's correct, unless they've asked the employee, himself.
They haven't gotten it from the company"; and that Barnik
commented, "Well now you know what one of our
demands are going to be."
Charnock also testified that all the Association requests
had sought information on what individual employees
would receive under a new proposal, and that the Union, at
the meetings on December 18, 1975, sought past wage
information for the first time when it requested the
complete wage history of each employee from January 1,
1975, to date, showing each increase, the reason, and the
date. Charnock testified that the Union also requested
wage information he had indicated was confidential; that
in the letters of January 26 to Unit A and Unit B, the
Respondent furnished "a wealth of information" in
response to the Union's demand, indicating "the percent-
age compliance of that anticipated projection" as to merit
and bonus payments; and that, at a meeting on or about
February 2, Barnik gave him a letter repeating the need for
the information but making no reference to the January 26
10
SUN OIL COMPANY OF PENNSYLVANIA
letters. Asked then if there was any later request from the
Union for this information, Charnock answered, "Well if
you consider, on February the 27th, we received a copy of
the charge."
Charnock testified further that the requests for informa-
tion related to the wage reopener but that, when contract
negotiations began in May, the "union asked for the same
information that they had requested under the wage
reopener .... We said we'd take it under advisement and
pointed out that there was currently a charge against us";
and that on June 2 and 4, Unit A and Unit B respectively
"requested generally the same information that had been
requested under the wage reopener but made it perfectly
clear that this was a new and separate request under the
terms of the renewing of the contract .... As compared
to the request for the information under the wage reopener
* . . saying they needed it to negotiate the new contract."
Charnock testified that the Union was still seeking the
information the Respondent considered confidential; that
on or about June 21, the Respondent gave the Union a list
of salaries for both units "anonymously" and the grade
classification each salary represented, and this was the first
time the Respondent had given, "even anonymously," a list
of salaries; and that on or about June 28 the Respondent
gave the Union "that same list, identifying the names."
Charnock testified that the Union could not determine
from this list what bonus an employee had received, but
could figure out the amount of merit increase. He also
testified that the Union, on January 30, made wage
proposals for both units, that the Respondent made a
proposal, that they had been negotiating "under the
auspices of the Federal Mediation and Conciliation
Service," but that the mediator adjourned the negotiations
until the hearing herein was completed.
Charnock testified that the Respondent's offer for Unit
A contained two options; that "option I was a merit
increase, plus a continuation of the bonus plan plus an
increase in the salary ranges, conditioned by an expressed
waiver of confidentiality of information"; that this differed
from past proposals only in that "there's more explicit
wording concerning the confidentiality"; that option 2 was
a "transfer from a merit system to a fixed-rate system
which would involve general increases" and would have no
confidentiality attached; that the Respondent's contract
proposal for Unit B contained two options; that option I
was an "increase in the level-step salary progression and a
merit budget . . . again conditioned by an expressed
waiver of confidentiality," and a continuation of the bonus
program, with confidentiality; that option 2 was "a fixed-
rate system with a general increase" and no confidentiality;
that the Union's proposal for Unit A was "Retroactive
general increase, a substantial-extremely substantial
increase in the salary ranges, retroactively; a new general
increase and new increase in brackets"; and that the
Union's proposal for Unit B was "for the retroactive
increase, the same as they had asked for in A-did not ask
for an increase in salary ranges because they are on a level
step and it doesn't apply, and then asked for a new general
increase to unit B." Charnock testified that he did not
5 Emeryville Research Center, Shell Development Company, a division of
Shell Oil Co. v. N.LR.B., 441 F.2d 880, 883 (C.A. 9, 1971); N LR.B. v. Acme
Industrial Co., 385 U.S. 432 (1967).
know why the Union would need specific past merit
increase or bonus information to understand or to
implement any of the wage proposals presented by the
Respondent or the Union.
The contract provides that the Respondent has sole
discretion in implementing the merit and bonus provisions,
and that the exercise of this discretion is not subject to the
grievance procedure. Charnock testified, on cross-examina-
tion, that the parties understood granting the Respondent
such discretion was a rejection of the requests for
information, that excluding this matter from the grievance
procedure implied it was confidential even if there is no
reference to such confidentiality, and that the language in
the Respondent's proposals as to waiver of confidentiality
was merely a clarification of the existing language.
Charnock also testified that the employee representatives
always asked for the merit increase and bonus information,
and that it was the Respondent's policy "forever and a
day" to refuse to give it and to maintain it was confidential,
although he admitted he did not know how this confiden-
tiality position was established, and did not know that any
employees ever requested that their earnings not be
divulged to the Union. Charnock also testified that the
Union has continued to ask for the merit increase and
bonus information, and has continued, to date, to claim
that the information was needed to make an intelligent
wage proposal.
Concluding Findings
As noted above, the issue raised by the complaint is that
the Respondent failed and refused, since on or about
February 3, to furnish the Union, which was the certified
bargaining representative of the Respondent's employees,
with information as to employee wage rates, merit
increases, and bonuses. The evidence, which is in large part
undisputed, shows, and I find, that the Union requested the
information repeatedly, and informed the Respondent that
such information was necessary to enable the Union to
formulate wage proposals and to serve the unit employees
as the certified representative. The Respondent admits that
it refused to furnish the information during negotiations on
a contract wage reopener. The record is clear, and I find,
that it continued to fail and refuse to furnish much of this
information also during negotiations for a new contract.
It is a long-established principle of Board law that
"refusal to supply information relevant to the proper
performance of a Union's collective bargaining role will
support a Board finding of refusal to bargain in good faith
under Section 8(aX5) of the Act," and that the sole
criterion in determining whether information must be
produced is its relevance or reasonable necessity for the
union's proper performance of its representative role.5
Information directly related to wages, hours, or other terms
and conditions of employment of unit employees is
"presumptively relevant" to the union's representative
duties, and, therefore, such information is prima facie
required to be produced. While the Respondent argues in
its brief that the Union failed to discuss its need for the
II
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
information, it is the Respondent that bears the burden of
showing a lack of relevance or other justification for failure
to produce employee wage data.6 As the Court of Appeals
for the Fifth Circuit recently held: 7
The case law allows no equivocation regarding the
obligation to supply data. A company which fails to
produce relevant information violates its duty to
bargain. [Citations.J The only requirements are that the
union must request the data and it must be relevant to a
legitimate interest of the union. .... requested data
must be supplied unless it is plainly irrelevant. .... In
addition, an employer fails to bargain in good faith
when he unreasonably delays production of requested,
relevant data.
I am satisfied, and find, from the record as a whole, that
the Respondent has not shown justification for withholding
from the Union the information in question, which related
directly to wages and was requested repeatedly by the
Union as necessary in negotiating both a wage reopener
and a new contract. The information was in the possession
of the Respondent, and there is no showing that it would
have been unduly burdensome to collate the information
and furnish it to the Union.8 The Respondent does not
meet its obligation to furnish the information by telling the
union representatives they may question each employee as
to his earnings. Moreover, this was inconsistent with the
Respondent's repeated expressions of concern about
maintaining the confidentiality and anonymity of the
earnings of its employees. 9 In addition, I find no merit in
the Respondent's contention that the issues should be
deferred to the contractual arbitration procedures as the
Respondent's distribution of merit increases and bonuses
was not grievable under the contract.' 0
The Respondent argues in its memorandum that the
Union, with respect to negotiations on both the wage
reopener and the contract, "has clearly and unequivocally
waived its rights to receive such information," and such
waiver, shown originally by the Association's signing of the
contract, was effective "forever." There is no evidence,
however, showing such a "clear and unmistakable" waiver
by the Union of its right to be furnished such informa-
tion." It is not set forth in the contract. There is no
showing either the Association or the Union expressed
such a waiver. And the fact that the Union submitted wage
proposals and accepted proposed contract terms does not
establish such a waiver. 2
Accordingly, I find, on the basis of the evidence in its
entirety, that the Respondent has, since on or about
February 3, failed and refused to furnish the Union with
information as to (a) hourly rates of pay, (b) hourly rates
6 N. L.R.B. v. Rockwell-Standard Corporation, 410 F.2d 953, 957 (C.A. 6,
1969).
N.L.R.B. v. J. P. Stevens&d Co., Inc., Guliston Div., 538 F.2d 1152, 1164
(C.A. 5, 1976).
8 N.L.R.B. v. J. P. Stevens & Co., supra; The Kroger Company, 226 NLRB
512 (1976); Local No. 324, International Union of Operating Engineers, AFL-
CIO (Michigan Chapter, Associated General Contractors ofAmerica, Inc.), 226
NLRB 587 (1976).
9 Local No. 324, International Union of Operating Engineers, AFL-CIO,
supra; The Kroger Company, supra.
I0 The Anaconda Company, 224 NLRB 1041 (1976); The Kroger Company,
supra.
paid for overtime work, and (c) the last time each employee
received a general wage increase, merit increase, or bonus,
and the amounts thereof, and has thereby refused to
bargain with the Union in violation of Section 8(a)(5) and
(1) of the Act.13
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section 11I,
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 disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices in violation of Section 8(a)(5)
and (I) of the Act, I shall recommend that the Respondent
be ordered to cease and desist therefrom and from in any
like or related manner infringing upon its employees'
Section 7 rights, and to take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Respondent violated the Act by
its refusal to furnish the Union with information regarding
employee earnings, I shall recommend that the Respondent
be ordered to furnish this information to the Union.
Upon the basis of the foregoing findings of fact and the
entire record in this proceeding, I make the following:
CONCLUSIONS OF LAW
I. The Respondent, Sun Oil Company of Pennsylvania,
Inc., is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Oil, Chemical and Atomic Workers International
Union, Local 8-933, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By failing and refusing since on or about February 3,
1976, to furnish the above-named Union with information
as to (a) hourly rates of pay, (b) hourly rates paid for
overtime work, and (c) the last time each employee
received a general wage increase, merit increase, or bonus,
and the amounts thereof, the Respondent has refused to
bargain with the certified representative of its employees,
and has thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
11 The Timken Roller Bearing Co. v. N.LR.B., 325 F.2d 746 (C.A. 6,
1963); N.LR.B. v. Perkins Machine Company, 326 F.2d 488 (C.A. 1, 1964).
12 N.LR.B. v. Fitzgergald Mills Corporation, 313 F.2d 260, 265 (C.A. 2,
1963), cert. denied 375 U.S. 384 (1963); San Isabel Electric Services, Inc., 225
NLRB 1073 (1976).
13 N.LR.B. v. Ohio Power Co., 531 F.2d. 1381 (C.A. 6, 1976); Hotel
Enterprises, Inc., d/b/a Royal Inn of South Bend 224 NLRB 810 (1976);
Ellsworth Sheet Metal, Inc., 224 NLRB 1506 (1976); Western Electric, Inc.,
225 NLRB 1378 (1976).
12
SUN OIL COMPANY OF PENNSYLVANIA
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 14
The Respondent, Sun Oil Company of Pennsylvania,
Inc., Marcus Hook, Pennsylvania, its officers, agents,
successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively with Oil, Chemical
and Atomic Workers International Union, Local 8-933, as
the exclusive bargaining representative of the employees in
the certified units by failing and refusing to furnish that
union with information as to (a) hourly rates of pay, (b)
hourly rates paid for overtime work, and (c) the last time
each employee received a general wage increase, merit
increase, or bonus, and the amounts thereof.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Furnish forthwith to Oil, Chemical and Atomic
Workers International Union, Local 8-933, information as
to (a) hourly rates of pay, (b) hourly rates paid for overtime
work, and (c) the last time each employee received a
general wage increase, merit increase, or bonus, and the
amounts thereof.
(b) Post at its premises at Marcus Hook, Pennsylvania,
copies of the attached notice marked "Appendix."' 5
Copies of the notice, on forms provided by the Regional
Director for Region 4, after being duly signed by the
Respondent's representative, shall be posted by the
Respondent immediately upon receipt thereof, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 4, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
14 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 waived for all purposes.
15 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NoTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively, with Oil,
Chemical and Atomic Workers International Union,
Local 8-933, as the exclusive bargaining representative
of our employees in the certified units, by failing and
refusing to furnish to it, upon request, information
regarding employee earnings.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed in Section 7 of the National
Labor Relations Act.
WE WILL furnish forthwith to the above-named labor
organization information as to (a) hourly rates of pay,
(b) hourly rates paid for overtime work, and (c) the last
time each employee received a general wage increase,
merit increase, or bonus, and the amounts thereof.
SUN OIL COMPANY OF
PENNSYLVANIA, INC.
13