The Hughes Tool Co.

National Labor Relations Board - Board Decisions

Jul 15, 1952

100 N.L.R.B. 208 (N.L.R.B. 1952)

208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE HUGHES TOOL COMPANY amd INDEPENDENT METAL WORKERS
UNION LOCALS 1 AND 2, CUA. Case No. 89-CA-185. July 15,
1952
Decision and Order -
On November 5, 1951, Trial Examiner Allen MacCullen issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case,l and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the following modifications and
additions.2
1. We do not agree with the Trial Examiner that the Respondent
unlawfully refused to bargain with the Union concerning contracting
work out. The 1946 contract between the Respondent and United
Steelworkers of America, CIO, the Union's predecessor as bargaining
agent, contained an elaborate management clause which provided
among other things :
The Company shall have resposibilities for decision, subject to
procedures and conditions herein agreed upon, concerning : right
to subcontract or to have work done by independent contrac-
tors .. . .
Subsequently in the same year, the Steelworkers was supplanted as.
bargaining representative by the Union. The new bargaining repre-
sentative and the Respondent then entered into negotiations for a new
contract. According to the uncontradicted testimony concerning these
negotiations, the Respondent proposed that the management clause in
the Steelworkers contract be carried over unchanged in the new agree-
ment. The Union expressed opposition to the language, but not the,
intent of the clause. The lawyers for the Union and the Respondent
' The Respondent has requested oral argument . The request Is denied inasmuch as the.
record and briefs, in our opinion , adequately set forth the issues and the positions of the
parties
2 Subsequent to the hearing , the Respondent moved to reopen the record to Introduce
into evidence the May 16 , 1950 , letter from the Union to the Respondent in which was
contained a proposal for a contracting work out clause subsequently rejected by the,
Respondent . In view of our finding , infra, that the Respondent did not unlawfully refuse
to bargain about contracting work out, this letter has become irrelevant . Accordingly,
the motion to reopen the record is hereby denied.
100 NLRB No. 39.
THE HUGHES TOOL COMPANY 209
thereupon agreed upon the following clause as preserving the manage-
ment rights enjoyed under the Steelworkers contract.
Company shall continue to have all of the rights which it had
prior to the execution of this agreement except such rights as.
are relinquished herein.
When the Respondent's industrial relations director expressed doubt
that the clause accomplished the objective of the parties, the Union's
attorney assured him that it did so. The clause was thereupon in-
cluded in the initial contract signed by the Respondent and the Union
in 1946 and was carried over unchanged in subsequent contracts, in-
cluding the present one.
We believe that the evidence fairly establishes that the present man-
agement clause preserved to the Respondent the management rights
which were set forth in detail in the 1946 contract with the Steelwork-
ers. One of these rights vested in the Respondent the exclusive re-
sponsibility for decision concerning subcontracting. The Union there-
by waived any right, it might otherwise have had, to require the Re-
spondent to bargain concerning subcontracting during the term of the
existing agreement. Hence, the Respondent was not obligated to,
comply with the Union's sweeping demand for information about
subcontracting only 3 months after the signing of the agreement and
approximately 21 months before its expiration. Such information
was irrelevant to any statutory right which the Union then possessed.
Accordingly, we find, contrary to the Trial Examiner, that the Re-
spondent did not unlawfully refuse to bargain with the Union con-
cerning subcontracting .3
2. We agree with the Trial Examiner that the Respondent unlaw-
fully refused to bargain with the Union concerning employees trans-
ferred to the gun plant. It is unnecessary to decide whether, in the
absence of a proposal by the Respondent to amend the contract to,
protect the seniority rights of transferred employees, the Respondent
could have been required to bargain on this subject during the contract
term. The fact is that the Respondent voluntarily reopened the con-
tract for the negotiation of a seniority provision relating to trans-
ferred employees 4 At that time, if not before, the Union was entitled
to relevant information in the possession of the Respondent which
would enable it to understand and bargain intelligently concerning
the Respondent's proposed amendment.5
8 See Timken Roller Bearing Co v. N. L. R. B., 161 F. 2d 949 ( C. A. 6). In view of this
finding, we find it unnecessary to decide whether the reopening "on the question of wages
only" clause also acted as a waiver of the right to reopen the contract on the issue of
subcontracting
4 Seniority is of course a proper subject matter for collective bargaining . So is the
matter of transfer of employees to another plant. Brown-McLaren Manufacturing Com-
pany, 34 NLRB 984, 1007.
5 Southern Saddlery Company , 90 NLRB 1205.
'210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 26, 1951, the Union asked the Respondent for certain
items of information which it asserted would be helpful in the bargain-
ing negotiations. The Respondent refused the request upon the
ground that the information asked for pertained to employees at the
gun plant for whom the Union was not the bargaining representative.
Despite the Union's assurance that it was not concerned with the
status of employees while working at the gun plant, the Respondent
persisted in its refusal to give any of the information.6
Some of the information requested by the Union was clearly relevant
to the subject matter of the proposed negotiations. In this circum-
stance, we are not called upon to decide whether all of it was relevant.
By its adamant refusal to furnish any of the information, the Respond-
ent failed in its statutory duty to bargain in good faith.'
3. We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (5) of the Act by refusing to give the Union wage in-
formation concerning salaried employees in the unit.
The Union's request for information concerning rate classifications,
rate ranges, present rates, and rate history for salaried employees in
the unit is clearly relevant under Board and court decision's.s It was
entitled to such information in order that it might be able to deter-
mine for itself whether the Respondent was complying with the terms
,of the agreement.
4. We also agree with the Trial Examiner that the Respondent
unlawfully refused to bargain by failing and refusing to give the
Union wage data 9 and information about productivity.
As a defense the Respondent contends that the request for informa-
tion was in such form that it did not understand what was wanted.
But in contemporaneously refusing to give the Union the specific
information asked for, the Respondent pleaded not unintelligibility,
but pertinence 10 It neither claimed unintelligibility nor asked for
clarification. We therefore reject this defense as an afterthought.
6 In its April 3, 1951, letter to the Respondent , the Union said : "It is not now our
purpose to concern ourselves with the status of employees while they are working at
Dickson Gun Company, but we do think it appropriate to bargain with you concerning
what status some of those employees will have upon their return to the Hughes Tool
Company."
7The Jacobs Manufacturing Company, 94 NLRB 1214 , enfd . 196 F. 2d 680 (C. A 2),
30 LRRM 2098 ; Southern Saddlery Company, 90 NLRB 1205.
8 N L R B. v Yawman & Erbe Manufacturing Co , 187 F 2d 947 (C A. 2 ), enforcing
89 NLRB 881 , N L if. B . v. Union Manufacturing Co, 179 F. 2d 511 (C. A. 5 ) ; Aluminum
Ore Co v. N . L. B B., 131 F 2d 485 (C. A. 7) ; Leland-aiford Company , 95 NLRB 1306;
General Controls Co., 88 NLRB 1341 . We note that at the hearing , the Respondent's
industrial relations director expressed willingness to furnish all this information-
s See cases cited in footnote 8, supra.
10 In reply to a complaint from the Union that it had not received the data requested,
Vice-President Ayers said : "In our letter of July 19, 1951, from the Industrial Relations
Director to you , we supplied the pertinent data required for the submitting of wage
increase information to the wage Stabilization Board. . . As in the past in our wage
negotiations with you, we are happy to supply data that is pertinent to the negotiations.
We do not feel that the information you requested regarding productivity is pertinent in
connection with present negotiations." ( Emphasis supplied.)
THE HUGHES TOOL COMPANY 211
The Respondent further asserts that it was not required to furnish
information as to changes in productivity because, under -Wage
Stabilization Board formulae, such an increase will be approved by
that Board only if the employer warrants that he will not use such
a wage increase as a basis for seeking a price increase, a warranty which
the Respondent is -unwilling to give.,," This amounts to saying that
bargaining on a productivity wage increase will be fruitless, because
the Respondent is unwilling to agree to the conditions attached to
such wage increases by the Wage Stabilization Board and therefore
that the Respondent is relieved of any obligation to bargain on this
subject at all. But this attitude does not meet the statutory standard
of good faith bargaining.12
The duty to bargain collectively presupposes negotiations be-
tween the parties carried on in good faith, with a common willing-
ness among the parties to discuss freely and fully their respective
claims and demands and, when they are opposed, justify them
on reason . . . It contemplates a meeting between the contracting,.
parties with open minds and a sincere desire to reach an -agree,
ment in a spirit of cooperation . . . Although it does not compel
the making of any agreement between employer and employees,
... it contemplates the making of contracts satisfactory to both
employer and employees.13 (Emphasis supplied.)
5. We agree with the Trial Examiner that the subsequent wage
agreement did not render moot the refusal to bargain on wage
matters."
The Remedy
We have found that the Respondent failed to bargain with the
Union by refusing to furnish certain relevant information. Accord-
ingly, we will order the Respondent to supply such information to
the Union upon request.
Because of the limited scope of the Respondent's refusal to bargain,
and because of the absence of any indication that danger of other un-
fair labor practices is to be anticipated from the Respondent's conduct
in the past, we shall not order the respondent to cease and desist
from the commission of any other unfair labor practices 15
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
u WSB Resolutions 22 and 23, adopted June 6, 1951, 17 F. R. 23, CCH Emergency Labor
Law, par. 18,006 31.
12 N. L. R. B. v. Hopper Manufacturing Company, 170 F. 2d 962 (C. A. 6).
'IN. L. R. B. v. Kentucky Utilities Co., 182 F. 2d 810, 813 (C. A. 6).
1* N. L. R. B. v. American National Insurance Co., 343 U. S. 395, 30 LRRM 2147;
Yawman & Erbe Manufacturing Company, supra.
15 General Controls Co., 88 NLRB 1341.
227260-53-vol. 100-15
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board hereby orders that the Respondent, The Hughes Tool Com-
pany, Houston, Texas, its officers, agents, successors, and assigns,-
shall:
1. Cease and desist from refusing to bargain collectively with Inde-
pendent Metal Workers Union, Locals 1 and 2, CUA, as the exclusive
representative of all journeymen, carpenters, and apprentices at the
Respondent's Houston, Texas, plant, including all other hourly paid
nonsupervisory production and maintenance employees; all nonsuper-
visory salaried employees. working in the production area except
timekeepers; excluding the carpenter foremen, all journeymen main-
tenance pipefitters and apprentices, the foreman, executives, super-
visory, clerical, office and professional employees, electrical employees,
print shop employees, industrial relations department employees, ac-
counting department employees, other than shop clerks, all, engi-
neering department employees except mechanics, helpers, and laborers
in, the laboratory, and cafeteria employees, by refusing, to, furnish
relevant information with respect to the transfer of employees to the
Hughes Gun Company, and with respect to salaried and other em-
ployees in the unit.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act : ,
(a) In order to enable Independent Metal Workers Union, Locals
1 and 2, CUA, to discharge its functions as stautory representative of
the employees in 'the appropriate unit, furnish upon request to that
labor organization (1) all relevant information with respect to the
transfer of employees from the unit which it now represents to the'
Hughes Gun Company; (2) all relevant information with respect to
rate classifications, rate ranges, present rates, and rate history for
salaried employees in the unit; and (3) all other relevant wage data
for employees in the unit for the period from January 15, 1950, to
July 1, 1951, including names, classifications, rates of pay and rates
paid, and changes in productivity.
(b) Post at its plant in Houston, Texas, copies of the notice
attached hereto and marked "Appendix A." 16 Copies of said notice,
to be furnished by the Regional Director for the Sixteenth Region,
shall, after being duly signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt thereof and main-
tained by it for at least sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that such notices are not altered, defaced, or covered
by any other material.
16 In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
THE HUGHES TOOL COMPANY 213
(c) Notify the Regional Director for the Sixteenth Region in
writing, within ten (10) days from the receipt of this Decision, of
the steps taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed, insofar as it alleges that the Respondent violated Section 8
(a) (1) and (5) of the Act by refusing to bargain collectively in good
faith with respect to contracting work out, recalled employees, and
job contents (time-study reports).
CHAIRMAN HERZOG and MEMBER STYLES took no part in the con-
sideration of the above Decision and Order.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies.of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL, upon request, furnish to INDEPENDENT METAL
WORKERS UNION, LOCALS 1 AND 2, CUA, as the exclusive repre-
sentative of all the employees in the bargaining unit described
herein, all relevant information with respect to the transfer of
employees from the unit which it now represents to the Hughes
Gun Company, rate classifications, rate ranges, present rates, and
rate history for salaried employees in the unit, all other relevant
wage data for employees in the unit, including names, classifica-
tions, rates of pay and rates paid, and changes in productivity,
for the period from January 15, 1950, to July 1, 1951.
The bargaining unit is: All journeymen, carpenters, and
apprentices at the Respondent's Houston, Texas, plant, including
all other hourly paid nonsupervisory employees working in the
production area except timekeepers; excluding the carpenter
foremen, all journeymen maintenance pipefitters and apprentices,
the foreman, executives, supervisory, clerical, office and profes-
sional employees, electrical employees, print shop employees, in-
dustrial relations department employees, accounting department
employees, other than shop clerks, all engineering department
employees except mechanics, helpers, and laborers in the
laboratory, and cafeteria employees.
THE HUGHES TOOL COMPANY,
Employer.
Dated -------------------- By ---------------------------------
(Representative ) ( Title)
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for sixty (60) days from the date
hereof, and must not be altered, defaced, or covered by any other
material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges duly filed by Independent Metal Workers Union, Locals 1 and 2,
CUA, herein called the Union, the General Counsel of the National Labor
Relations Board,' by the Regional Director for the Sixteenth Region, (Fort
Worth, Texas) issued a complaint dated July 10, 1951, against the Hughes Tool
Company, herein called the Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the National
Labor Relations Act, as amended, 61 Stat. 136, herein called the Act.
With respect to the unfair labor practices the complaint alleged in substance
that the Respondent on or about October 23, 1950, and at all times thereafter
refused to bargain collectively with the Union.
In its answer duly filed at the opening of the hearing,' Respondent admitted
certain allegations of the complaint, but specifically denied the commission of any
-unfair labor practices.
-Pursuant to notice, a hearing was held on August 6 and 7, 1951, at Houston,
Texas, before the undersigned Trial Examiner, duly designated by ' the Chief
Trial Examiner. The General Counsel, Respondent and the Union were repre-
sented by counsel. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence pertinent to the issues was afforded to all
parties.
At the hearing General Counsel moved to amend paragraph 8 of the complaint
by the addition of a subparagraph (f), reading as follows: "Wage data and
classifications of employees with their rates of pay." Respondent's objections
were overruled, and the complaint was amended by the addition of this sub-
paragraph (f) .'
At the conclusion of the hearing, all parties were afforded an opportunity
to present oral argument and to file briefs and proposed findings of fact.
General Counsel rresented oral argument, and Respondent filed a brief with the
undersigned.
Upon the entire record in this case, from his observation of the witnesses,
and consideration of the argument of counsel and brief filed, the Trial Examiner
makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
, Respondent is, and has been at all times material hereto, a corporation duly
organized and existing by virtue of the laws of the State of Delaware, having
its principal office and place of business in Houston, Texas, and is now and has
I The General Counsel and his representative are herein referred to as General Counsel,
and the National Labor Relations Board as the Board.
2 Respondent requested permission to file an oral answer on the record . General Counsel
made no objection and the request was granted by the Trial Examiner.
& Respondent claimed no surprise and made no request for additional time to prepare
any defense It may have had to the amended charge. It thereafter fully cross -examined
General Counsel 's witnesses and offered testimony in relation to the subject matter of
the amendment, and the matter was fully litigated.
THE HUGHES TOOL COMPANY _ 215
been at all times herein mentioned continuously engaged at said place of business
in the manufacture, sale, and distribution of specialized oil well drilling equip-
ment and related products.
In the course and conduct of its business in Houston, Texas, during the calen-
dar year 1950, which period is representative at all times material hereto,
Respondent purchased raw materials consisting principally of metals valued in
excess of $1,000,000, more than 75 percent of which were shipped to Houston
from points outside the State of Texas. During the same period Respondent
produced specialized oil well drilling. equipment valued in excess of $1,000,000,
more than 75 percent of which were sold and shipped from Houston, Texas, to
points outside the State of Texas.
The Trial Examiner finds that Respondent is engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Independent Metal Workers Union , Locals 1 and 2, CUA, is a labor organiza-
tion admitting to membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain'
1. The appropriate unit
The complaint alleges, Respondent admits, and the Trial Examiner finds that
the following employees constitute a unit appropriate for the purpose of col-
lective bargaining within the meaning of Section 9 (b) of the Act :
All Journeymen, carpenters, and apprentices at the Respondent' s Houston
plant, including all other hourly paid nonsupervisory production and maintenance
employees; all nonsupervisory salaried employees working in the production
area except timekeepers ; excluding the carpenter foremen, all Journeymen
maintenance pipefitters and apprentices, the foreman, executive, supervisory,
clerical, office and professional employees, electrical employees, print shop em-
ployees, industrial relations department employees, accounting department
employees, other than shop clerks, all engineering department employees except
mechanics, helpers, and laborers in the laboratory, and cafeteria employees.
2. Certification of the Union
On April 20, 1950, the Union was certified by the Board as the exclusive repre-
sentative for the purpose of collective bargaining of all employees in the above-
mentioned unit a
3. The refusal to bargain; sequence of events
On November 18, 1946, Respondent and the Union entered into the first
collective bargaining contract (an interim agreement), and on April 1, 1947,
a formal contract was entered into, effective for 1 year from November 18, 1946;
on December 16, 1947, a new contract was entered into effective for 2 years from
November 18, 1947, which contract further provided that if not terminated at
the end of the 2-year period by 60 days prior written notice by one party to the
As there was little, if any, conflict in the testimony of the witnesses, the testimony of
all witnesses is credited by the Trial Examiner, except as may be specifically noted herein.
The findings of fact are stated without reference to particular witnesses, except where
it is necessary for clarity.
5 Hughes Toot Company, Case Nos. 39-RC-127, 128, and 133.
216 DECISIONS- OF NATIONAL' LABOR RELATIONS BOARD
other, the contract would continue in effect thereafter from year to year. On
-August 1, 1950, Respondent and the Union entered into the present contract,
which is effective for 2 years beginning August 1, 1950.
The complaint charges that on or about October 23, 1950, Respondent refused
-to bargain collectively with the Union in respect to (a) contracting work out;
-(b) transferring employees from Respondent's employ to the Hughes Gun bom-
•pany ; (c) recalled employees ; (d) salaried employees ; (e) job contents (time-
study reports) ; and (f) wage data and classifications of employees with their
•rates of pay.
a. Contracting work out
On October 23, 1950, T. B. Everitt, president of Local #1 of the Union, wrote
to J. M. Delmar, Respondent's director of industrial relations, as follows :
As you know, we have consistently taken the position that the Company
does not have the right under the Collective Agreement to contract work
out so as to deprive our members of work, particularly in instances where
we have in the past performed such work.
However, our efforts to police the contract and to evaluate the problem
are hindered by our limited access to information.
We therefore respectfully request that the Company advise us, in such
form as it deems appropriate, of the number of contracts (exclusive of
contracts involving construction work) let to outside contractors during the
past twelve months, including contracts now in progress, showing the con-
tract price of each, the approximate man hours involved in each, and the
nature of such work. We do not wish to be arbitrary in this demand for
information, and would be willing to discuss why the furnishing of any or
all of the above items would impose too great a burden on the Company. As
a matter of fact, we would be willing to assist the Company in any way' in
compiling this information. We do, however, firmly request that the Com-
pany furnish to us information illustrating the past extent of the contract
work practice so that we can take steps to protect our membership.
We further and separately request that within fifty (50) days of the date
that each new contract is let (exclusive of contracts relating to construction
work) the Company advise us of the letting of the contract, the name of
the contractor to whom the contract is let, the contract price, the approxi-
mate man hours involved, the nature of the work, and, if the Company
desires, a brief statement as to why it was contracted out.
On November 16, 1950, Everitt wrote to H. E. Rogers, Respondent' s vice presi-
dent manufacturing, renewing the request for the information demanded on
October 23, 1950, in which letter Everitt referred to a conference with Rogers
at which conference Rogers had declined to furnish the information demanded,
except that Respondent would advise the Union when new contracts were made,
without giving the specific information demanded by the Union.
On November 20, 1950, in a letter from Delmar to Everitt, receipt of the two
letters of October 23 and November 16, 1950, was acknowledged, and in addition
Respondent advised the Union :
The company desires to afford the union every reasonable opportunity
to police the contract between the company and the union, but at the
same time , it believes that the requests made in the two union letters un-
reasonable and that the company is not required by the terms of either
the law or the contract to furnish such information.
THE HUGHES TOOL COMPANY 217
- . On December .12, 1950, Everitt again wrote Delmar asking what information
Respondent would give the Union in connection with the contract work problem,
and Delmar replied on December 14, 1950, that Respondent's position remained
, the same as expressed in the letter of November 20, 1950.
Everitt testified that the contracting of work to outside contractors affected
the hours of work and the rates of pay of members of the Union, and that the
Union desired the information to determine how many employees had been
reduced and down-graded in classification as the result of contracting work to
outside contractors; that for the last 2 or 3 years the Union had protested to
-Respondent concerning the contracting of work to outsiders, and during the
negotiations preceding the contract of August 1, 1950, the Union proposed a
clause in the contract giving the Union certain rights with respect to work
normally performed by members of the unit which Respondent proposed to
contract to outsiders. Respondent refused to bargain on this issue, and the
contract was executed with no reference to contracting work out.
Respondent contends that it has the exclusive right under the "Management
Clause" in all of its contracts with the Union to contract work to outside con-
tractors, and that the Union by entering into the agreement of August 1, 1950,
is bound by the terms of the management clause and has waived its right to
bargain concerning this matter. Article XXV, "Management Clause" in the
contract of August 1, 1950, and in all prior contracts with the Union, reads as
follows :
Company shall continue to have all the rights which it had prior to the
execution of this agreement except such rights as are relinquished herein.
In Tide Water Associated Oil Co., 85 NLRB 1096, the Board, in construing
a management clause as related to a refusal to bargain on a retirement allow-
ance plan, said :
We are reluctant to deprive employees of any of the rights guaranteed them
by the Act in the absence of a clear and unmistakable showing a waiver of
such rights.
It is clear that the management clause in the present contract does not show a
specific waiver of the right to bargain concerning contracting work to outside
contractors . Respondent urges, however , that the present management clause
must be interpreted by a- consideration of the facts surrounding the drafting
of this clause.
The contract dated April 6, 1946, with the United Steel Workers, CIO, the
predecessor union, contained the following management clause:
The Union hereby recognizes that the Company has sole jurisdiction over
all matters concerning the management of the plant, including but not
limited to : location of plants, products and quantities thereof to be manu-
factured, processes and methods of manufacturing, source of materials and
supplies, disposition of products, standards of production and inspection,
hiring, training, and supervision of the working force. The Company shall
have responsibility for decision, subject to procedures and conditions herein
agreed upon, concerning: right to subcontract or to have work done by
independent contractors, rehire, transfer, promotion, discipline, selection of
supervisory employees , suspension or discharge for cause, relieving employ-
ees from duty because of lack of work or for other legitimate reason, and
rules for the conduct of employees and operation of plant; provided, that
the provisions of this section will not be used for purposes of discrimination
against any employee because he is not a member of a labor union.
K
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All rights not specifically granted to the Union or employees under this
contract are reserved by the Company.
In the negotiations leading to the first contract, with the Union on Novem-
ber 13, 1946, Respondent sought to have the same management clause included
In the contract. The Union objected and after some bargaining the present
clause was agreed upon. Respondent contends that the present clause reserves
to it all of the rights enumerated in the management clause contained in the
contract with the United Steel Workers, CIO, including the right to contract
work out without reference to the Union e The Trial Examiner cannot agree.
It is clear from the testimony of Everitt, who participated in all of the negotia-
tions covering all of the contracts executed with the Union, that Everitt did not
understand that the Union had waived its right to bargain concerning the con-
tf^cting of work to outside contractors. Everitt testified that the contracting
of work outside had not been excessive until the last 3 or 4 years. On cross-
examination Everitt was asked :
Q. Is it your contention that under your provision in the contract or any
way, the Company does not have a right to willy-nilly contract out anything
to any subcontractor it,wants to?
A. Well, that is questionable.
The fact that the Union refused to agree to the waiver of certain definite
rights as expressed in the old contract with the CIO, but rather insisted upon
the more general provisions of the present contract, does not support Respond-
ent's position that the Union has, by agreeing to the present contract, waived
its right to bargain on contracting work to outside contractors. On the con-
trary, the evidence shows that there was no clear and unmistakable waiver by`the
-Union of its right to bargain on this question.
Based on all of the evidence, the Trial Examiner finds that tile Union did not
waive its right to bargain on the question of contracting work to outside
,contractors.
We come now to a more troublesome question-whether the Union having
entered into the contract on August 1, 1950, was foreclosed from bargaining
on the question of contracting work to outside contractors while that contract
was in force. The contract of August 1, 1950, contained nothing with reference
to this question. Following the decision of the Board in Allied Mills, Inc., 82
NLRB 854, it is clear that the Union is not foreclosed from bargaining on this
issue. In that case the Board decided that the provisions of Section 8 (d) of
the Act' were limited to terms and conditions embodied into a writing, and
6 Delmar testified that at a meeting prior to the execution of the contract dated November
18, 1946 , when the revised management clause was discussed , at which meeting Tom Martin
Davis, representing the Union , was present , the following occurred :
Q. Do you recall a remark made by Mr . Tom Martin Davis at that time about the
new clause contained in the document marked for identification as Respondent's
Exhibit 2?
A. Yes, because I personally differed even with you [the attorney for Respondent]
on the Management Clause and was holding for the clause we had in the CIO con-
tract ; and Mr. Davis stated to me, "Jimmy , this will give you the same thing as
you now have in the CIO contract."
It is significant that Delmar was in doubt whether the new clause was sufficient. What
Davis thought is of course , evidence of the intention of the parties , but is not sufficient
to establish a clear and unmistakable waiver as required in the Tide Water Associated Oat
Co. case.
7 "The duties so imposed shall not be construed as requiring either party to discuss or
agree to any modification of the terms and conditions contained in a contract for a fixed
period, if such modification is to become effective before such terms and conditions can
be reopened under the provisions of the contract."
THE HUGHES TOOL COMPANY 219
that as to unwritten terms dealing with wages, hours, and other terms and
conditions of employment not included in the written agreement, the obligation
remained on both parties to bargain continuously.
In Jacobs Manufacturing Company, 94 NLRB 1214, the Union invoked the
reopening clause of an existing contract to discuss wage rates. At the same
time the Union sought to bargain as to an existing group insurance plan and
also to consider pensions. At the time of the negotiations preceding the execu-
tion of the existing contract, the parties bargained with reference to the group
insurance plan, and certain changes were made in the plan. No reference was
made in the written contract to the group insurance plan. The question of pen-
sions was new and had not previously been discussed by the parties, and there
was no reference to this subject in the contract.
In a split decision, Chairman Herzog and Members Houston and Styles, speak-
ing for a majority of the Board, decided that as pensions had not previously
been bargained upon by the parties, Respondent violated -Section 8 (a) (5) by
refusing to bargain with the Union on this matter. Chairman Herzog, however,
was of the opinion that as the parties had bargained on the question of insurance,
that further bargaining on this subject was foreclosed while the agreement was in
effect, even though insurance was not expressly included in the written contract.
Member Murdock in a separate dissenting opinion, found that "Inasmuch as
the Union never requested bargaining on pensions and insurance independent
and divorced from a discussion of wage rates under the reopening clause, the
Respondent's willingness to bargain thereon independently was never put to test.
It thus cannot be said to have refused to bargain thereon independently pur-
suant to an obligation so to bargain under the Allied Mills and Tide Water
doctrine."
In the present case we have an independent request by the Union, divorced
from any other request, to bargain on an issue clearly affecting the conditions
of employment and the wages of the employees included in the unit. There was
no bargaining by the parties during the negotiations leading to the execution of
the agreement of August 1, 1950, on this subject. It is true that the Union did
raise the issue, but Respondent refused to bargain on the matter as distinguished
from the situation in Jacobs Manufacturing Company, supra, where there was
at least some bargaining on insurance and Respondent made some modifications
in the plan.
Respondent has urged that Article XXVII, particularly sections 1 to 4
thereof, forecloses future discussions on matters not contained in the agreement
as effectively as did the provisions in the General Motors contract, referred to in
the Board's decision in Jacobs Manufacturing Company, supra. The Trial
Examiner cannot agree. In the General Motors contract the parties agreed that
"for the life of this agreement, each voluntarily and unqualifiedly waives the
right, and each agrees that the other shall not be obligated, to bargain collectively
with respect to any subject or matter not specifically referred to or covered in
this agreement, even though such subjects or matter may not have been within
the knowledge or contemplation of either or both of the parties at the time that
they negotiated or signed this agreement." In the existing contract between the
Union and the Respondent there is no such waiver. Sections 1 to 4 of Article
XXVII, to which Respondent has referred, contains no waiver. These sections
deal exclusively with the right of either party to amend the existing contract.
If it is Respondent's position that the Union is now seeking to amend the manage-
ment clause by excluding the right of Respondent to contract work to outside
contractors, it is clear that the present management clause is too general, and as
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Trial Examiner has already found does not clearly and unmistakably waive
the right to bargain on this issue.
Based on all of the evidence, and after giving consideration to Respondent's
argument, the Trial Examiner finds that Respondent violated Section 8 (a) (5)
and (1) by refusing to bargain with the Union on the contracting of work to
outside contractors.
b. Transferring employees to Hughes Gun Company
On December 20, 1950, the Union requested bargaining with Respondent
concerning proposed plans to reopen the Dickson Gun Plant, which was operated
by Respondent during the last war. Thereafter Everitt had a telephone conver-
sation with Rogers, representing Respondent, in which Everitt was given to
understand that before any action was taken by Respondent, there would be
negotiations with the Union. On January 12, 1951, Respondent issued a circular
to all of its employees explaining that it intended to reopen the Dickson Gun
Plant as a separate corporation to be known as the Hughes Gun Company, and
explaining that a relatively small number of employees would be needed by the
Gun Company. Shortly thereafter, Respondent distributed to some of its
employees a memorandum asking if such employees would be interested in
returning to the Gun Plant to do the same general level of work they were then
performing.
On January 26, 1951, Everitt wrote to Delmar calling Delmar's attention to
the fact that the Union had twice asked for information as to employees in the
unit who had formerly worked at the Gun Plant, which information Respondent
had refused to furnish for the reason that it would require an "undue amount
of time to develop" it. Everitt then directed Delmar's attention to the fact
that Respondent had developed the information from its records, and was
polling the employees to determine whether they desired to transfer to the Gun
Plant. Everitt then protested the action of Respondent in bargaining directly
with the employees and ignoring the Union, and again renewed the request
of the Union for information as to the employees involved.
On January 31, 1951, Delmar replied to Everitt refusing to furnish the
requested information.
On March 7, 1951, Respondent requested a meeting with the Union's repre-
sentatives for the purpose of discussing a possible amendment to the contract
covering employees transferred to the Gun Plant; and at a later meeting Re-
spondent proposed to amend the contract to give employees transferred to the
Gun Plant seniority rights for all time worked outside the unit, upon the return
of such employees to the unit.
On March 26, 1951, the Union again requested definite information as to the
names of employees already transferred to the Gun Plant, with their present
and past status with reference to job classification and pay ; the same informa-
tion as to employees then in the unit who formerly worked at the Dickson Gun
Plant; the number of employees Respondent contemplated transferring to the
Gun Plant ; what arrangements Respondent had made with employees already
transferred, and what arrangements Respondent contemplated making with
subsequently transferred employees. In this request the Union stated that such
information, and other information previously requested, was necessary for fur-
ther negotiations on the question of an amendment to the contract suggested
by Respondent. On March 28, 1951, Respondent wrote to the Union refusing
to furnish the requested information as it had no relationship to the bargaining
rights of the Union.
THE HUGHES TOOL COMPANY 221
On April 3, 1951, the Union advised Respondent that the information it had
requested was necessary to intelligent bargaining on the proposed amendent to
the contract extending seniority rights to employees temporarily transferred to
the Gun Plant, and requested further bargaining.
The attempt to bargain with the Union on a proposed amendment to the
contract covering the employees transferred to the Gun Plant were never con-
cluded for the reason that Respondent refused to give the Union any informa-
tion on the subject. The Union, therefore, was not In a position to bargain
Intelligently on this question. Thereafter Respondent transferred eight em-
ployees from the bargaining unit to the Hughes Gun Company, such employees
being given supervisory status.
Respondent now takes the position that this whole question is moot; that
these eight employees are not members of the unit and the Union has no right
to bargain for them; that the Hughes Gun Company Is now fully manned and
Respondent has no intention of transferring any other employees from the
unit to the Gun Company ; that these eight employees were not transferred by
Respondent, but voluntarily terminated their employment with Respondent, and
have accepted positions as supervisors with a separate corporation and are no
longer subject to the bargaining rights of the Union.
The Trial Examiner finds it unnecessary to comment upon these claims of the
Respondent. In its brief Respondent has summarized its position that the
requests "were improper and the Company was not obligated under the facts
and the law to furnish information with respect to any of them, for the reason,
among others, that the letter as a whole was confined to the status of employees
transferred from the Main Plant to the Dickson Gun Plant, about which the
complaining Union had no bargaining rights."
The Trial Examiner finds no merit in Respondent's position for the following
reasons, first, Respondent requested the Union to bargain on this matter, and,
thereafter settled the matter unilaterally by transferring members of the unit
to the Gun Company before negotiations with the Union were concluded ; and
second, requests by the Union for information to enable the Union to intelligently
bargain on this question have at all times been refused by Respondent.
It is not necessary to determine whether the Union is entitled to all the
information it requested. Respondent has taken an intransigeant position as
to the request of the Union for information. Its refusal to furnish any
information is evidence of its lack of good faith in bargaining! Based on all
of the evidence, the Trial Examiner finds that Respondent refused to bargain
with the Union on the matter of transferring employees from the unit to the
Hughes Gun Company, in violation of Section 8 (a) (5) and (1) of the Act.
c. Recalled employees
Aaron Lee Curtis, a member of the grievance committee for the Union,
made some inquiry of Respondent's supervisors as to the recalling to work of
an employee named B. D. Roberts. This matter clearly was a grievance,
and was fully and satisfactorily settled under the grievance procedure in the
contract, and Roberts recalled. During the grievance procedure, Curtis
requested information from one of Respondent's employment supervisors as
to the seniority of employees subject to recall. It is clear from the testimony
that Curtis applied at the wrong place for this information. Such request
should have been made to the personnel director's office, and the Union was
$ Southern Saddlery Company, 90 NLRB 1205; The Jacobs Manufacturing Company,
supra.
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
so advised . The evidence does not satisfy the Trial Examiner that Respondent
refused to bargain on this matter , and it will be recommended that subparagraph
( c) of paragraph 8 of the complaint relating to recalled employees be dismissed.
d. Salaried employees
On March 13 , 1951 , the Union requested Respondent to furnish a seniority list
of all salaried employees within the bargaining unit , their rate classification,
rate ranges, present rate , and rate history . On March 16, 1951, Respondent
refused to furnish this information to the Union , relying upon Article XVII,
section 2 of the agreement providing :
Non-supervisory salaried employees within the bargaining unit shall con-
tinue to work under the same rules and practices as have been established
in the past. While occupying a job in which the job content has not been
changed , no incumbent salaried employee 's compensation shall be reduced
below what it was on the effective date of this agreement.
In refusing to furnish the Union with the requested information , Respondent
stated "so far as we have been able to determine from our records , no incumbent
salaried employee's compensation had been reduced."
Everitt testified that the Union desired this information to determine if
Respondent was following section 2 of Article XVII of the contract ; that he
had no conferences with Delmar , or with any other supervisory employee of
Respondent, on this subject . After Respondent refused to furnish this informa-
tion on March 16 , 1951, the Union made no further requests therefor.
At the hearing Delmar testified that Respondent would furnish the information
requested by the Union, except the information as to rate history , and that
as to this , Respondent wanted the Union to explain what they wanted and why
they wanted it. Delmar was asked how respondent expected the Union to
determine whether Respondent was carrying out the same policies in regard
to salaried employees as were followed in the past if Respondent refused to
furnish the Union with information as to past policies and what has happened
since the execution of the contract . Delmar replied :
I don't expect them to find out anything, Mr. Counselor . For the first time
in the history of bargaining rights, they have asked for data concerning
the salaried employees in the unit , and in asking for that data , I would
like to know what their motive is.
The fact that Respondent has now reversed its position in refusing to furnish
any information to the Union on this subject clearly indicates that Respondent
recognizes that this is a bargainable matter . Questioning the Union 's motive
is demanding information to which it is entitled is not sufficient to justify
Respondent 's position at this time to refuse to furnish information from which
the Union could determine whether there had been any change in Respondent's
policy in regard to salaried employees.
It is not necessary to determine whether the Union is entitled to all of
the information it has demanded , but Respondent 's refusal to furnish any
information as to rate history is a refusal to bargain as required by the Act;
and the Trial Examiner finds that Respondent thereby violated Section 8
(a) (5) and ( 1) of the Act.
e. Job contents ( time-study reports)
On February 26, 1951 , the Union wrote Respondent that there was dissatisfac-
tion among the employees as a result of Respondent 's drive for more produc-
THE HUGHES TOOL COMPANY 223
tion, and requested Respondent to furnish the Union with a copy of the time-study
reports made on all jobs since January 1, 1950, showing the name of the person
making the study and the name of the operator who was on the machine at
the time the study was made.
On February 27, 1951, Respondent suggested that the Union furnish infor-
mation as to any specific cases in which employees had complained rather
than require Respondent to delve into all of the time-study records of 1950,
and that Respondent was anxious to correct any inequities.
There is no testimony that the Union followed up this matter after receipt
of Respondent's reply of February 27, 1951. Respondent's letter of February
27, 1951, does not even suggest that Respondent would refuse to furnish such
information as was necessary to enable the Union to bargain on this issue. A
reasonable interpretation of this letter is that Respondent was willing to discuss
the matter further to determine if it was necessary to go into an extensive
search of all of the time-study reports for the year 1950. From the evidence it
appears that the Union thereafter abandoned the matter. Such evidence does
not convince the Trial Examiner that Respondent refused to bargain, and it
will be recommended that subparagraph (e) of paragraph 8 of the complaint
be dismissed.
f. Wage data and classifications of employees with their rates of pay
In July 1951 Everitt and other members of the Union, together with Thomas
M. Mobley, attorney representing the Union, had conferences with Delmar,
representing Respondent, with respect to negotiations as to a wage increase
effective August 1, 1951, in accordance with the contract. At these conferences,
Delmar requested the representatives of the Union to make a written demand
for the information the Union desired for these negotiations.
On July.16, 1951, the Union wrote to Delmar requesting the following informa-
tion :
List of employees in each classification with their rates of pay and rates
paid.
Average rates paid and average rates of pay for the above. (For the
salaried group the rate ranges for the appropriate classifications affected
will be needed.)
Changes in production in proportion to changes in man hours worked.
All the above is requested for as nearly as practicable on the following
dates : January 15, 1950, August 1, 1950, October 1, 1950, June 1, 1950, and
July 1, 1950.1
On July 19, 1951 Respondent advised the Union :
For the base payroll period ending January 15, 1950, we had a total of
2,468 hourly and salary employees in your bargaining unit, who worked a
total of 120,158 straight time hours for which they received total straight
time compensation (including shift differential) of $191,802.02. The average
hourly rate for employees in your bargaining unit on January 15, 1950, was
$1.5962.
Effective October 2, 1950, a blanket wage increase of 12¢ an hour was
given to hourly employees in the bargaining unit and corresponding adjust-
ment to salaried employees in the bargaining unit. The remaining adjust-
ment under present stabilization regulations is 4¢ an hour.
0 At the hearing, it was developed that June 1, 1950, and July 1, 1950, was an error,
and that 1950 should have been 1951. This error appears obvious.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent refused to furnish the Union with any information concerning
changes in production, taking the position that Respondent did not favor
negotiations which aim to exceed or break the stabilization formulas established
by the Wage Stabilization Board.
On July 25, 1951, the Union renewed its demand for the detailed information
it requested on July 15, 1951, stating that such information was necessary for the
Union to determine the amount of rate increase the employees are entitled to
under the Wage Stabilization Board's original formula and subsequent rulings
and not the amount Respondent thinks they are entitled to receive.
On July 27, 1951, Respondent replied to the renewed request of July 25, 1951,
stating that it had supplied the Union with all of the pertinent data required
for submission of wage increase information to the Wage Stabilization Board ;
and that Respondent did not feel that the information requested regarding
production was pertinent to the present negotiations.
The evidence establishes that the information Respondent gave the Union on
July 19 was incorrect in certain respects, and that the Union's request for
detailed information, rather than the conclusions of Respondent, was necessary
for the Union, in protecting the interests of the employees in the unit, to determine
the accuracy of Respondent's conclusions.
Respondent contends that where there has been continuous bargaining in
good faith on a particular subject of negotiation, a finding of refusal to bargain
cannot be sustained. Stated generally, there may be some merit to Respondent's
position. Such a statement , however, does not apply to the present case. What-
ever may have occurred after the close of the hearing cannot be considered in
determining whether Respondent's conduct amounted to a refusal to bargain.
In the present case, the Union requested certain detailed information and
Respondent definitely refused to supply this information. The only question
to be determined is whether the Union was entitled to this information. If it
was, and Respondent refused to furnish it, it is clear that there has been a
refusal to bargain in violation of the Act.
Respondent next contends that where a Union requests information in such
a form that Respondent does not understand what information the Union desires,
and no reasonable person can understand what information is wanted, Respond-
ent cannot be found guilty of a refusal to bargain. It is not necessary to
determine if there is merit in Respondent's position, considering such statement
in the abstract. At the hearing, Respondent's attorney by astute cross-examina-
tion of Everitt 2nd Mobley sought to confuse these witnesses and make it
appear that at least Everitt did not know just what information the Union
really wanted, an.l this was true with respect to the five dates referred to in the
concluding paragraph of the letter of July 16. Considering the testimony of
Everitt, Mobley, and Delmar together, it is clear that Respondent had no partic-
ular difficulty in understanding what information was desired by the Union.
Certainly Delmar's letter of July 19 (General Counsel Exhibit No. 26), does not
indicate that he had any difficulty in understanding the Union's position.
Respondent further contends that the furnishing of the names of all of the
employees within the bargaining unit as requested by the Union would, under the
circumstances, probably be construed as an unfair labor practice by Respondent,
and in support of such position cites L. Ronney d Sons Furniture Manufacturing
Company, 93 NLRB 1049. That case is not in point in any respect. The facts
there were so dissimilar to those in the present case that the Trial Examiner
does not find it necessary to comment upon them.
THE HUGHES TOOL COMPANY 225
Mobley testified that in a conference with Delmar on July 16, Delmar gave
the Union certain figures , and admitted they were not accurate , that these
figures included some supervisory employees . In the letter of July 19 from
Delmar, Respondent gave the Union certain figures which were slightly modified
from those given verbally to the Union at the conference on July 16. In view
of the uncertainty as to the accuracy of the figures which Respondent supplied
to the Union, it is reasonable for the Union to feel dissatisfied with the con-
clusions of Respondent , and it was clearly within its rights in demanding the
details that it mignt be in a position to check the results arrived at by Respondent.
To do this, it was necessary for the Union to be given the names of the employees
in the unit in each classification.
In B. F. Goodrich Co., 89 NLRB 1151, the Board found that the offer by Respond-
ent to furnish data as to the salaries, salary ranges, and merit ratings of the
employees was not sufficient where Respondent declined to furnish the names
of the employees.
Respondent further contends that the furnishing of information to the Union
as to changes in production in proportion to changes in man hours worked would
not be relevant to bargaining on wages. In support of this position Respondent
urges that the position of the Union that the Wage Stabilization Board will con-
sider an increase in wages based on increased production is without merit. This
Board is not in a position to consider what policy the Wage Stabilization Board
may take in the matter of an increase in wages based on increased production.
Respondent's position is that the Wage Stabilization Board will not consider an
increase in wages based on increased production, while the position of the Union
is that there is basis for the position that such an increase will be considered by
that Board. To pose this issue clearly leaves the matter as a bargainable question
which, after it has been negotiated by the Union and the Respondent, must be
left to the Wage Stabilization Board for ultimate settlement. After all, the Act
does not require this Board to settle that issue. The only function of the Board
is to determine if this is a bargainable matter, and then leave it to the parties
to settle with the Wage Stabilization Board whether the position of the Union
or the Respondent is sound. That this was a matter affecting the wages and
conditions of employment is clear, and the Union was acting within its rights in
seeking information to bargain intelligently on this issue.
In conclusion, the Trial Examiner finds no merit in Respondent's position in
refusing to furnish the information requested by the Union with respect to wage
data and classifications of employees with their rates of pay, and from all of,
the evidence finds that Respondent thereby violated Section 8 (a) (5) and (1)
of the Act.
On October 4, 1951, Respondent filed a motion with the Trial Examiner alleg-
ing that on October 1, 1951, Respondent and the Union had entered into a wage
agreement which settled all issues between the parties in relation to hourly
rates, and that "all reopening privileges of the Union of any nature on wages
cinder the current labor contract are definitely and specifically closed until
July 31, 1952, the termination date" of the new contract ; and that by reason of
said agreement all issues as to wages are settled, and that the charges alleged in
subparagraphs (d), (e), and (f) of paragraph 8 of the complaint are moot. Re-
spondent therefore moves that these three subparagraphs be dismissed. General
Counsel and the Union have opposed the granting of this motion.
The Trial Examiner has found that the evidence in support of the charge
alleged in subparagraph (e) is not sufficient to support that charge, and will
recommend that this subparagraph of the complaint be dismissed.
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It has been found that Respondent violated Section 8 (a) (5) and (1) by re-
fusing to bargain concerning subparagraph (d) salaried employees, and sub-
paragraph (f) wage data, etc. In Southern Saddlery Co., supra, the Board said :
It is well established that the issues raised by filing charges alleging a refusal
to bargain do not become moot by reason of the subsequent execution of a
collective bargaining agreement.
Respondent cannot now purge itself of the violations of which it is guilty by
executing a new contract with the Union. What the situation might be if Re-
spondent furnished the information requested by the Union it is not necessary
to decide, as there is no proof that such information was furnished. Respond-
ent's motion to dismiss subparagraphs (d) and (f) of paragraph 8 of the
complaint is denied.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in con-
nection with the operations of Respondent described in section I, above, have
a close, intimate, 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.
V. THE REMEDY
It having been found that Respondent, The Hughes Tool Company, has en-
gaged in unfair labor practices within the meaning of Section 8 (a) (5) and (1)
of the Act, it will be recommended that it cease and desist therefrom and take
certain affirmative action in order to effectuate the policies of the Act.
It has been found that on October 23, 1950, and thereafter, Respondent has
refused to bargain collectively with Independent Metal Workers Union, Locals
1 and 2, as the exclusive representative of its employees in an appropriate unit;
that while purporting to maintain a conciliatory attitude toward the Union,
Respondent has arbitrarily assumed the position that the Union has waived its
rights to bargain on the contracting of work to outside contractors, and has
refused to bargain with the Union on this issue; that Respondent has bargained
with its employees in the bargaining unit with reference to the transfer of some
of said employees to the Hughes Gun Company, refusing to recognize the right
of the Union to bargain on behalf of these employees while they were still mem-
bers of the bargaining unit ; by questioning the motive of the Union to bargain
about salaried employees included in the unit ; alleging that this was the first
time in the history of bargaining rights that the Union had sought information
regarding such employees ; by refusing to furnish information to the Union con-
cerning wage data and classifications of employees in the unit with their rates
of pay, and refusing to furnish information to the Union as to changes in
production in proportion to changes in man hours worked, such refusal being
based on Respondent's theory that the Wage Stabilization Board would not
consider a raise in wages based on increased production. Respondent's actions
clearly indicate that a general order, to bargain would not be sufficient to ef-
fectuate the policies of the Act. Accordingly, it will be recommended that Re-
spondent be required, upon request, to bargain collectively with the Union as
the exclusive representative of its employees in the appropriate unit, with respect
to contracting work to outside contractors, transferring employees from the unit
to the Hughes Gun Company, rate history and other data with respect to salaried
THE HUGHES TOOL COMPANY ^ 227
employees in the bargaining unit, wage data, and other information, including a
list of the employees in the unit, and changes in production in proportion to
changes in man hours worked, and be required to furnish the Union the informa-
tion which it previously requested and such further information as will enable
the Union to evaluate Respondent's position and to bargain intelligently thereon.
As the complaint does not allege unfair labor practices other than refusing to
bargain, and the evidence does not reveal a danger of the commission of unfair
labor practices other than refusing to bargain collectively to be anticipated from
Respondent's conduct in the past, the Trial Examiner will not recommend that
Respondent cease and desist from the commission of any other unfair labor
practices.
Upon the basis of the foregoing findings of fact and the entire record in this
proceeding, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2 (5) of
the Act.
2. All journeymen, carpenters, and apprentices at the Respondent's Houston
plant, including all other hourly paid nonsupervisory production and mainte-
nance employees, all nonsupervisory salaried employees working in the produc-
tion area except timekeepers, excluding the carpenter foreman, all journeymen
maintenance pipefitters and apprentices, the foreman, executive, supervisory,
clerical, office and professional employees, electrical employees, print shop em-
ployees, industrial relations department employees, accounting department em-
ployees other than shop clerks, all engineering department employees except
mechanics, helpers, and laborers in the laboratory, and cafeteria employees,
constitute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
3. At all times since April 20, 1950, the Union has been the exclusive repre-
sentative of the employees in the aforesaid unit for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
4. By failing and refusing, on or about October 23, 1950, and at all times
thereafter, to bargain collectively with the Union as the exclusive representa-
tive of the employees in the appropriate unit, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of
the Act.
5. By said acts Respondent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act and
has engaged in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
7. Respondent did not refuse to bargain collectively with the Union in regard
to the seniority of employees subject to recall and with respect to Respondent's
alleged drive for more production.
[Recommendations omitted from publication in this volume.]
227260-53-vol. 100--16