The Sawbrook Steel Castings Co.

National Labor Relations Board - Board Decisions

Oct 28, 1968

173 N.L.R.B. 381 (N.L.R.B. 1968)

SAWBROOK STEEL CASTINGS CO.
The Sawbrook Steel Castings Company and United
Steelworkers of America, AFL-CIO. Case
9-CA-4663
October 28, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On July 11, 1968, Trial Examiner Frederick U.
Reel issued his Decision in the above-entitled proceed-
ing, 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
attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and bnef, and
the entire record in this case, and hereby adopts the
findings,' conclusions,2 and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner and
orders that the Respondent, The Sawbrook Steel
Castings Company, Lockland, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
381
"clearly and unmistakably established " waiver of its statutory right to
such information . Cloverleaf Division of Adams Dairy Co., 147 NLRB
1410
2 We agree with the Trial Examiner 's conclusion that the arbitration
provision in this contract is immaterial in resolving the issue in this case
The relevant portion of that provision provides that arbitration shall be
the ". . sole and exclusive remedy available to an employee and the
Union for any alleged breach of this agreement " In the present
proceeding before the Board, the Union clearly is asserting its statutory
right to relevant data as bargaining representative rather than alleging a
breach of the agreement
TRIAL EXAMINER'S DECISION
FREDERICK U. REEL,Trial Examiner. This case, heard at
Cincinnati, Ohio, on May 22, 1968, pursuant to a charge filed
the preceding March 26 and a complaint issued April 15,
presents the question whether Respondent, herein called the
Company, violated Section 8(a)(5) and (1) of the Act by
failing to comply with the request of the Charging Party,
herein called the Union, that the Company furnish it with job
descriptions and related data covering the jobs within the
bargaining unit which the Umon represents.
Upon the entire record, and after due consideration of the
bnef filed by the Company, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR
ORGANIZATION INVOLVED
The pleadings establish and I find that the Company, an
Ohio corporation, engaged at Lockland, a suburb of Cincin-
nati, in the manufacture of steel castings, annually ships
products valued in excess of $50,000 to points outside the
State, and is an employer engaged in commerce and in
operations affecting commerce, within the meaning of Section
2(2), (6), and (7) of the Act.
The pleadings further establish, and I find, that the Union
is a labor organization within the meaning of Section 2(5) of
the Act, and that on December 19, 1966, the Union was
certified as the exclusive collective-bargaining representative of
the Company's production and maintenance employees.
II THE UNFAIR LABOR PRACTICES
A. Background-The Contract
1 The Trial Examiner found, inter alia, that the Union did not
unequivocally waive its right to information about job classifications
and pay rates of each employee in the bargaining unit. Along with its
initial proposal, during contract negotiations , relating to the frequency
and scope of the seniority lists which the Union wanted the Respondent
to furnish, the Union suggested other items for inclusion on such a list,
i e., job classifications and rates of pay It seems clear that, thereafter,
the main topics of discussion about the seniority list were its frequency
of submission and the comprehensiveness of its coverage , and that the
other data originally requested by the Union never crystallized into an
issue between the parties . We do not believe that the Union's
subsequent submission of a revised seniority proposal which failed to
mention the classification and pay rate items can be construed as a
After the certification of the Umon, the parties negotiated
a 3-year contract which they signed on October 31, 1967. The
contract provided for a grievance procedure, culminating in
arbitration, which was to be "the sole and exclusive remedy
available to an employee and the Union for any alleged branch
of this agreement." The contract further provided that each
party thereto "unequivocally waives any right to bargain
further ... concerning the subject matters in existence at the
time of the execution of this Agreement, known to the parties
or either of them." The agreement also provided that the
Company shall prepare and post a seniority list, mail a current
seniority list to the Union every 6 months, and maintain a
173 NLRB No. 66
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
current seniority list, available for inspection at all reasonable
times by the Union or interested employees. A schedule
attached to the contract listed 54 jobs by classification and
rate of pay.
During the course of negotiating the agreement, the Union
had proposed that the seniority list to be furnished should
include the employee's job classification and rate of pay. The
Union also proposed a "job evaluation program" to be based
on a certain manual compiled jointly by the industry and the
Union This manual included job descriptions The Company
during the negotiations asked to see the manual in question
but it was in the course of being revised. Eventually the Union
dropped its demand for a new job evaluation study, stating
that such a study would take too long At no time in the
negotiations had the Union asked for job descriptions apart
from the proposed job evaluation program.
The Company has in its possession current job descriptions
covering the furnace or melting department and the core room
department At an earlier period the Company had job
descriptions covering other jobs, and it contemplates the
preparation of new job descriptions in connection with a
current modernization program. The current job descriptions
for each of the jobs in the melting and core room departments
are each approximately two pages long.
B. The Union's Requests for Job Descriptions,
and the Company's Responses
On November 20, 1967, William Kelley, an employee in the
bargaining unit, filed a grievance alleging that the Company
had reduced his wages and classification although he was
continuing to perform the same work. On December 18, 1967,
during one of the meetings on the grievance, Union Represent-
ative Billingsley asked the Company to give him information
regarding the job duties of Kelley and of the other employees
in the bargaining unit. On December 21 Billingsley wrote the
Company confirming this request. The letter states
At the meeting between the Company and the Union on
Monday, December 18, 1967, the Union requested the
Company to supply it with job duties encompassed by each
job classification in the Bargaining Unit. This letter con-
firms that request
In addition, the Union also requests the Company to
supply it a list of all employees presently in the Bargaining
Unit indicating the job classification of each such employee
together with each employee's currently hourly rate of pay.
This information is required by the Union in order for it
to adequately discharge its responsibilities under the Agree-
ment between the parties.
One month later, on January 29, 1968, at a meeting of the
parties involving another grievance, Billingsley again requested
the information with respect to job duties and also asked for a
complete list of employees in the bargaining unit.
i The ultimate decision was adverse to Kelley
2 The Company argues in its brief that the Union failed to show an
actual need for the requested data The courts have long since rejected
the contention that the bargaining representative must show that the
data is related " to a particular existing controversy " See N 1 R B. v.
On February 2, 1968, the Company wrote Billingsley
declining to furnish a list of employees in the bargaining unit,
and stating that the Company was complying with the contract
by maintaining a seniority list available for inspection by the
Union or interested employees The Company's letter was
silent as to the request for job descriptions, but in a later letter
the Company indicated that at the January 29 meeting it had
taken the position that the matter "was still under study."
On March 5, 1968, the Kelley grievance was the subject of
a hearing before an arbitrator,' and at that time the Union and
the Company introduced their exchange of correspondence
described above. This prompted the Company to write the
Union on March 8, requesting that the Union explain the basis
for its requests for data. The Union replied on March 12,
stating in part
The first request, on December 21, 1967, arose in the
course of our discussion of the Kelley grievance. The
information sought was obviously necessary for us to
intelligently evaluate the merit of this particular grievance
as well as other grievances involving classifications and rates
of pay which might arise at some future date. The second
request, on January 29, 1968, was also made in the course
of a grievance meeting. During the meeting the Union
learned for the first time that the Company considered
some unspecified number of unnamed individuals to be
included in the bargaining unit. The Union was simply
seeking to discover the identity of these shadowy figures for
whom it had been certified as the bargaining agent.
To this the Company responded in a letter dated March 19,
1968, by quoting the waiver provisions of the contract. The
letter continues
Although we made reference to the contract in our prior
letters, your letter appears to ignore the Agreement. It is no
answer merely to say that your request arose in the course
of discussing a grievance. In giving further consideration to
your request would you please.
1. Refer to, and if necessary explain, the express
provision in the Agreement on which you base your
request
2 If none, would you explain why the term "unequi-
vocally waives" as stated in the above quoted provision
of the Agreement, fails to cover the situation.
One week later the Union filed the charge giving rise to this
proceeding.
C. Concluding Findings
Few propositions of labor law are better settled than that
which recognizes the statutory right of the bargaining represent-
ative to obtain data reasonably necessary to the proper
discharge of its statutory duty .2 Decisions too numerous to
cite hold that a union when acting as bargaining representative
is entitled to relevant data, going far beyond the list of
employees and job descriptions requested in this case. The
Company here, not contesting this general rule, argues that the
Whiten Machine Works , 217 F 2d 593 , 594 (C A 4), cert. denied 349
U.S 905 , N.L R.B v. The Item Company , 220 F .2d 956 , 958 (C A. 5),
cert denied 350 U.S. 905, Boston-Herald Traveler Corporation v
N L.R B, 223 F 2d 58, 60, 62-63 (C.A. 1)
SAWBROOK STEEL CASTINGS CO.
contract negotiations and its eventual terms establish that the
Union here waived its right to such data. Bearing in mind that
the waiver of a statutory right to data must be "clear and
unequivocal," we turn to a consideration of this defense.
The fact that the contract contains arbitration provisions is
plainly immaterial. N.L.R.B. v. Acme Industrial Co., 385 U.S.
432; Timken Roller Bearing Co. v. N.L.R.B., 325 F.2d 746
(C.A. 6). The Company points out, however, that the instant
contract contains express provisions covering the listing of
employees in the bargaining unit, and that the Union during
negotiations abandoned an effort to obtain a more comprehen-
sive list which would have included each employee's job
classification and rate of pay. With respect to job descriptions,
the Company relies on the fact that the Union during
negotiations first proposed, but later abandoned, a job
evaluation program which would have entailed job descrip-
tions. The contract provides a "clear and unequivocal waiver"
of the right to bargain during the life of the contract over
matters known to exist when the agreement was executed. The
Company reads this "waiver" to encompass the matters
proposed but abandoned during the negotiations.
Turning first to the job descriptions, the Union had
proposed a `job evaluation program," a study which the Union
said (according to the company witness who described the
bargaining) would take about 6 months. This program or study
necessarily would have entailed the preparation of job descrip-
tions, but such job descriptions would have been incidental to
the study. At no time during the bargaining did the Union ask
for job descriptions independent of the proposed study, and at
no time during the bargaining did it ask for job descriptions of
the 54 job classifications contained in the schedule attached to
the contract.
Under these circumstances the "waiver" language in the
contract would seem applicable to the full scale job study
program, so that the Company would not be under any duty
to bargain further during the life of the contract concerning
such a program, but a request for job descriptions of current
jobs is quite another matter, and as to that I find no clear and
unequivocal waiver in the contract.
The Company somewhat missed the point, I believe, when
it demanded that the Union "refer to, and if necessary explain,
the express provision in the agreement on which you base your
request," and in asking "why the term `uniquivocally waives'
... fails to cover the situation" (emphasis by the Company).
The Umon's right to the data arises , not out of the contract,
but out of the statute, and it is for the Company to establish
what, if anything, negates this statutory right. The waiver
clause goes to the right to bargain over new matters during the
life of the contract (cf. N.L.R.B. v. Jacobs Manufacturing
Company, 196 F.2d 680 (C.A. 2)), but the Union's right and
duty to bargain is not limited to bargaining over new matters
but includes the administration of the current contract. It is in
the discharge of this duty and the exercise of this right that the
Union is entitled to job descriptions, so the waiver of the right
to bargain over matters outside the existing contract is
irrelevant. See Acme, supra; J. I. Case Company v. N.L.R.B.,
253 F.2d 149, 153, 154 (C.A. 7), and cases there cited.
It follows that the Company's refusal to give the union job
descriptions covering the various jobs encompassed by the
contract violated the Company's obligation to recognize and
bargain with the Union, and hence violated Section 8(a)(5) and
(1) of the Act.
Turning now to the Union's request for the job classification
383
and pay rate of each employee in the bargaining unit, it is
true that during the bargaining negotiations the Union pro-
posed a clause which would have required the Company to
furnish it every 90 days with a list showing each employee's
"full name, address, seniority, job classification, and rate of
pay." The Company took the position that a seniority list by
departments was ample information for the Union. Later the
Union dropped its proposal in favor of a seniority list to be
furnished it every 6 months, and the keeping of a current list
in the personnel department, and these provisions eventually
appeared in the "Seniority" article of the executed contract.
The Company argues that this bargaining history and the
"waiver" clause absolve it of any duty to furnish the
classifications and wage rates. Although the issue here may be
closer than that concerning the job descriptions, the situation
is essentially the same as that presented in Timken Roller
Bearing Co v. N.L.R B., 325 F.2d 746, 750-751, where the
Sixth Circuit rejected contentions similar to those put forward
by the Company here.
The "waiver" clause, in my judgment, is not controlling. By
its terms it waives any right "to bargain further concerning any
subject." As I view this provision, it waives bargaining over
substantive terms or conditions, but I do not read it as a waiver
of procedural rights inhering in the Union as bargaining
representative. In other words, as the duty to bargain
collectively extends to the administration of the contract, I do
not read the "waiver" as extinguishing the Union's right to
data necessary to such administration, but only as extin-
guishing its right to bargain for new substantive terms. The
bargaining history here parallels that in the Timken case. Here
the Union apparently dropped its demand that the contract
give it a right to have the requested data furnished every 90
days, and accepted a provision giving it less data every 6
months. But as Timken shows, the fact that the Union was
unable to secure a contract right to reinforce its statutory right
does not destroy the latter, but merely relegates the Union
thereto. Thus the Company is not guilty of a breach of
contract in failing to give the data, and the Union cannot
successfully maintain a suit under Section 301. But the failure
of the Union to obtain a new contract right does not require it
to abandon its preexisting statutory right.
This is particularly true in this area, where we are dealing
with data patently important to the Union in the discharge of
its obligation to represent the employees and administer the
contract, and also with material which the employer had
readily available and can easily furnish. In any event as
previously noted, the Company's contentions here with respect
to bargaining history are substantially identical to those
rejected in Timken Roller Bearing Co. v. N.L.R.B., 325 F.2d
746, 750-751 (C.A. 6). It follows that the Company's failure
to give the Union at its request the job classification and rate
of pay of each employee, like the failure to furnish it job
descriptions, violated Section 8(a)(5) and (1) of the act.
CONCLUSIONS OF LAW
The Company by refusing to furnish the Union with job
descriptions covering the jobs in the bargaining unit, and by
refusing to give it the job classification and rate of pay of each
employee, engaged in unfair labor practices affecting com-
merce within the meaning of Sections 8(a)(5) and (1) and 2(6)
and (7) of the Act.
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
I shall recommend that the Company cease and desist from
its unfair labor practices and from any like or related
interference with the Union's efforts to bargain collectively,
that it furnish the data in question upon the Union's request,
and that it post an appropriate notice
Accordingly, upon the foregoing findings and conclusions
and upon the entire record I recommend, pursuant to Section
10(c) of the Act, issuance of the following-
ORDER
Respondent The Sawbrook Steel Castings Company, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from.
(a) Refusing to furnish United Steelworkers of America,
AFL-CIO, when requested to do so by said organization, with
job descriptions covering the jobs in the bargaining unit for
which that Union is the bargaining representative of the
Company's employees, and with the job classification and rate
of pay of each employee in that unit.
(b) In any like or related manner interfering with that
Union's efforts to bargain on behalf of the employees in that
unit
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Upon request furnish the above-named labor organiza-
tion with the above-described data.
(b) Post at its plant at Lockwood, Ohio, copies of the
attached notice marked "Appendix."3 Copies of said notice,
on forms provided by the Regional Director for Region 9, after
being duly signed by its representative, shall be posted by
Respondent, immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous
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 9, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith 4
3 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for the
words "the Recommended Order of a Trial Examiner " in the notice. In
the further event that the Board 's Order is enforced by a decree of a
United States Court of Appeals , the words "a Decree of the United
States Court of Appeals Enforcing an Order" shall be substituted for the
words "a Decision and Order "
4 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify the Regional
Director for Region 9, in writing , within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner
of the National Labor Relations Board, and in order to
effectuate the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that.
WE wILL,upon the request of United Steelworkers of
America, AFL-CIO, furnish that organization with job
descriptions covering the jobs in the bargaining unit for
which that Union is the bargaining representative, and with
the job classification and rate of pay of each employee in
that unit
THE SAWBROOK STEEL
CASTINGS COMPANY
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced, or
covered by any other material.
If employees have any question concerning this notice or
compliance with its provisions , they may communicate direct-
ly with the Board' s Regional Office, Room 2407 Federal
Office Building, 550 Main Street, Cincinnati, Ohio 45202,
Telephone 684-3686.