NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
May 19, 2008
DECISION AND ORDER
By Chairman Schaumber and Member Liebman
On January 16, 2008, Administrative Law Judge George Carson II issued the attached decision. The Respondent filed an exception and a supporting brief. The General Counsel filed an answering brief, and the Respondent filed a reply brief.
The National Labor Relations Board[1] has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions and to adopt the recommended Order, except that the attached notice should be substituted for that of the administrative law judge.[2]
We agree with the judge that information requested by the
Union in November 2006 concerning the Respondent’s temporary (yellow badge)
employees was relevant to the Union’s policing of the Respondent’s contractual
obligation to make an “earnest effort” to find “non-traditional work” for
laid-off unit employees, and that the Respondent violated Section 8(a)(5) and
(1) of the Act by refusing to provide the requested information. Contrary to
the Respondent’s exception, the Board’s decision in Disneyland Park, 350 NLRB No. 88 (2007), does not alter that
result.
First, the
The Respondent itself treated yellow badge work as
“non-traditional work” in July 2006, when it settled a grievance under Section
19.5C by recalling two bargaining unit employees from layoff and assigning them
“non-traditional” work that had been performed by yellow badge employees. The
Second, the General Counsel has shown that the relevance of the information should have been, and was, apparent to the Respondent under the circumstances. Manager Shank’s November 20, 2006 response to the Union’s request for yellow badge information, stating that the Respondent “clearly understand[s] the union’s intent for this information” and that “[t]o this end, [the Respondent] will continue to make an earnest effort to find non-traditional work opportunities when possible” shows that the relevance of the requested information for the policing of Section 19.5C of the collective-bargaining agreement was apparent to the Respondent. Accordingly, we agree with the judge that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to provide the requested information.
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge and orders that the Respondent, Hamilton
Sundstrand,
Dated,
____________________________________
Peter C. Schaumber, Chairman
____________________________________
Wilma B. Liebman, Member
(Seal) National Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order of the
National Labor Relations Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will
not refuse to
bargain collectively with International Union UAW and its Local 592 by failing
and refusing to provide requested information that is relevant and necessary to
the
We will
not in any like
or related manner interfere with, restrain, or coerce any of you in the
exercise of your rights guaranteed by Section 7 of the Act.
We will promptly
furnish the
Ahava Pyrtel, Esq. for the General Counsel.
Max Brittain and Lee Ann Rabe, Esqs, for
the Respondent.
Ted Dever, for the Charging Party.
DECISION
Statement of the Case
George Carson II,
Administrative Law Judge. This case was tried in
On the entire record,
including my observation of the demeanor of the witnesses, and after
considering the briefs filed by the General Counsel and the Respondent, I make
the following
Findings of Fact
i.
jurisdiction
Hamilton Sundstrand, the Company, is a
The Respondent admits, and I find and conclude, that International
Union UAW and its Local 592, the
ii. alleged
unfair labor practices
A. Background
The Company, headquartered in Windsor Locks,
Employees of the Company wear red identification badges.
Individuals working at the
The
All hourly paid production and maintenance employees; but excluding all office and shop clerical employees, nurses, personnel department employees, engineering department employees, experimental engineers, salaried employees and all supervisory employees.
In the mid-1980s, there were approximately 1500 employees
in the bargaining unit, and in 2000 there were approximately 900 employees in
the unit. The current bargaining unit consists of about 475 employees. In the
1980’s the Company relocated several operations from
This proceeding concerns an information request regarding yellow badge employees that is predicated upon Section 19.5, subsection C, Joint Involvement/Job Security, of the current contract, which is effective from June 25, 2003 until May 18, 2008, and which provides:
In areas where the workload decreases, the Company will make an earnest effort to find work for affected employees by assigning them to work historically performed by non-Bargaining Unit employees.
The intent of assigning Bargaining Unit employees to non-traditional work is to prevent and/or minimize layoffs in the Bargaining Unit. In an attempt to further enhance the effectiveness of the concept the following is agreed to:
(1) Unless time and circumstances prevent it, the Company will notify the respective Chief Steward on a weekly basis of all Unit employees assigned to non-traditional work and the approximate duration of each assignment.
(2) Non-traditional work shall be offered in accordance with seniority in the classification and department affected by a reduction in work force provided they have the ability to perform the non-traditional work.
(3) The parties recognize that in isolated cases it may not be practical to assign by seniority. In those cases, discussion with the respective Chief Steward will take place prior to the assignment. This assignment shall be limited to a maximum of not longer than 30 calendar days unless mutually agreed to by the Union and Company and shall not result in an employee being reduced or laid off out of line of seniority.
A listing of laid-off employees, General Counsel’s Exhibit 4, shows a total of 73 unit employees on layoff as of January 29, 2007. At the hearing, there was testimony regarding contractual provisions relating to subcontracting and the relocation of work and whether the reason for the layoff of a particular employee affected the obligation of the Company under Section 19.5C. After some discussion, the parties stipulated “with regard to the names on General Counsel’s Exhibit 4,” that the Respondent would not argue that “the laid-off employees are only either from subcontracting or relocation” . . . and “[t]hat there would be no application of [Section] 19.5C with respect to the obligation to look for non-traditional job opportunities [f]or workers laid off because of a decrease in work.” Thus, Section “19.5C would apply relative to . . . the earnest effort . . . to seek non-traditional . . . jobs for these employees.” At the close of the hearing, Counsel for the Respondent reconfirmed “[t]hat there are people on there [General Counsel Exhibit 4] … [t]hat could fall under 19.5C.”
B. Facts
In 2006, the Company began preparations for the relocation
of certain machining work from
On April 10, the recording secretary of the
On May 18, Union Steward Dave Shade verbally presented to
the appropriate first-line supervisors a grievance relating to yellow badge
employees performing work that the
On June 21, Chief Steward Bagley, as provided in the contract, reduced the grievance to writing and presented it at the third step. The grievance states that the Union was “grieved over management’s lack of any real effort to find non-traditional work for bargaining unit employees,” pointing out that “[a]t this time there is an abundance of work of a non-traditional nature that the company is hiring temporary employees to perform while ignoring the C.B.A.” The grievance cites Section 19.5C of the contract and requests that the Company “put forth a good faith effort to find non-traditional work for either laid off Bargaining Unit employees or those in the Bargaining Unit who have the skills/abilities in the needed areas.”
On July 6, at what was supposed to be the third step grievance
meeting, Human Resources Representative Mike Boug, who works at company
headquarters in
After the foregoing settlement of the grievance, Ted
Dever, president of the Union, observed that “more and more” yellow badge
employees appeared to be working at the
On November 3, Recording Secretary Rourke wrote Manager of Labor Relations Shank a letter that states, in pertinent part:
In order to better represent the contract and our members we are requesting the following information in regard to the “Yellow Badges” located at plants 1 and plants 6. In particular we request the following information:
1. Please inform us as to the number of “Yellow Badges.”
2. Where are these “Yellow Badges” working?
3. Who are the “Yellow Badges” working for?
4. What are the “Yellow Badges” job duties?
On November 20, Manager Shank responded to the
We do not have any additional information relating to department, supervision or job duties. We clearly understand the union’s intent for this information. To this end, we will continue to make an earnest effort to find non-traditional work opportunities when possible.
The foregoing response made no claim that the request of
the
On December 13, Rourke wrote Shank stating that her response
“falls extremely short of adequate” in that it only responded to one of the
four specific requests and repeating that the
Shank responded by letter dated December 21, stating that the Union “has been provided all information available in regards to the yellow badge information request” and restating the commitment of the Company to “continue to make an earnest effort to find non-traditional work opportunities when possible.”
On February 5, 2007, the Union filed the charge herein and, on February 16, 2007, President Dever wrote Cheryl Worden, the new manager of labor relations, restating the Union’s need for the information and explaining that “[w]ithout the requested information it is impossible for the Union to determine whether there are non-traditional work opportunities that Bargaining Unit employees could be performing in order to help minimize reductions.” Worden verbally responded that the Company was not going to supply the information.
Union President Dever testified that, based upon his
observations, yellow badge employees were performing work that bargaining unit
employees could perform, and that the
Senior Human Resources Representative Sutherland admitted that human resources does not look for nontraditional job opportunities “[o]nce the decision is made by someone to staff with non-employees, yellow badges.” Requests for temporary employees are made by individual managers and would be reflected on a request or purchase order. Sutherland pointed out that “these are typically engineering related jobs,” and that human resources does not know what needs have been identified by various managers for yellow badge employees. She testified that the “requests or purchase orders” are not filed with Human Resources or in any central location, that the Company does not “have a centralized repository.” On cross examination, Sutherland was reminded of that testimony and asked, “Where are they maintained?” Sutherland answered, “There are three separate systems. One is J.D. Edwards, one is Azure, and one is Console.” There was no further questioning of Sutherland regarding the “separate systems” that she identified. Sutherland acknowledged that the Company has an e-mail system that permits an individual to send a single e-mail to multiple recipients.
C. Analysis and Concluding Findings
The complaint alleges that the information sought by the
Although information relating to bargaining unit employees is presumptively relevant, a union must make a showing of relevance and necessity when requesting information relating to nonunit employees. As explained by the Board in Frito-Lay, Inc., 333 NLRB 1296 (2001):
It is well established that when a union seeks information
concerning matters outside the bargaining unit, the union is required to make a
showing of relevancy and necessity. See, e.g., Public Service Electric & Gas Co.,
323 NLRB 1182, 1186 (1997), enfd. 157 F.3d 222 (3d Cir. 1998). But the
Board has made it clear that the burden of establishing relevancy and necessity
in this context “is not an exceptionally heavy one, requiring only that a
showing be made of a ‘probability that the desired information is relevant, and
that it would be of use to the union in carrying out its statutory duties and
responsibilities.’”
Counsel for the General Counsel points out that the Respondent never claimed that the information sought was not relevant or that producing it would be burdensome. Rather, the Respondent claimed that it had provided “all information available.” Counsel argues that the evidence adduced at the hearing establishes that the information sought is relevant and can be made available, albeit not from a single central location.
The Respondent, although never advising the
The Respondent’s brief asserts that the Union “for the first
time revealed to the Company its reasoning for requesting the Yellow Badge
worker information” after filing the charge herein, citing General Counsel’s
Exhibit 10, the letter of February 16, 2007, to the new manager of labor
relations, Cheryl Worden, in which President Dever specifically explained that
“[w]ithout the requested information it is impossible for the Union to determine
whether there are non-traditional work opportunities that Bargaining Unit
employees could be performing in order to help minimize reductions.” The Respondent’s brief
neglects acknowledging that, prior to Worden becoming manager, there was no
need for an explanation. Former Manager Shank was fully aware of the reason for
the
The Respondent, in its brief, cites the testimony of
former International Representative Penn and President Dever in which they
acknowledged that the contract does not require the Respondent to create
non-traditional jobs and then argues that “creation of a [non-traditional job]
position is precisely what happens when Yellow Badge workers are staffed on Hamilton
Sundstrand projects” and that unit employees “have no entitlement to those
positions.” The foregoing argument is fallacious. The issue is not the absence
of an obligation to create non-traditional jobs or entitlement of unit
employees to a newly created position. The issue is the entitlement of the
The Respondent’s brief does not mention or discuss the
grievance that was settled in response to the direction given to management at
The Respondent’s brief also does not address the admission
of Senior Human Resources Representative Sutherland that human resources does
not look for nontraditional job opportunities “[o]nce the decision is made by
someone to staff with non-employees, yellow badges.” That admission effectively
contradicts the assurance in Manager Shank’s November 20 letter that the
Respondent, at
The Respondent cites San
Diego Newspaper Guild [Union-Tribune
Publishing Co.], 220 NLRB 1226 (1975), for the proposition that a request
for information regarding nonunit employees requires a showing that the
information “is relevant to bargainable issues.” That case is inapposite in
that it was held that the information sought did not directly affect bargaining
unit members. In this case the information sought pursuant to a contractual
provision does directly affect bargaining unit employees. Manager Shank assured
the
Prior to
this hearing, the Respondent had claimed only, as noted in the Respondent’s
letter of November 20 and more explicitly stated in its letter of December 21,
that the Union “has been provided all information available in regards to the
yellow badge information request.” I find it incomprehensible that this international corporation was
or is unaware of where yellow badge employees are working or what work they are
performing. It may well be true that the Respondent does not have the
information requested by the Union in precisely the form requested by the
Although
the Respondent informed the
The information requested by the
Conclusion of Law
By failing and refusing to provide the Union with the information it requested on November 3, 2006, said information being relevant and necessary to the Union as the collective-bargaining representative of the employees in the appropriate unit, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act.
The Respondent having failed and refused to provide the
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended2
ORDER
The Respondent, Hamilton Sundstrand,
1. Cease and desist from
(a) Refusing to bargain collectively with International
Union UAW and its Local 592 by failing and refusing to provide requested
information that is relevant and necessary to that
(b) In any like or related manner interfering with, restraining, and coercing employees in the exercise of rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Promptly furnish International Union UAW and its Local 592 with information reflecting where at Plants 1 and 6 the yellow badge employees are working, for whom they are working, and what their job duties are.
(b) Within 14 days after service by the Subregion, post at
its facilities in
(c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
Dated,
APPENDIX
Notice
To Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The
National Labor Relations Board has found that we violated Federal labor law and
has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE
RIGHT
Form,
join, or assist a union
Choose
representatives to bargain with us on your behalf
Act
together with other employees for your benefit and protection
Choose
not to engage in any of these protected activities.
We will not refuse to bargain collectively with International
Brotherhood of Teamsters Local Union 549 by failing and refusing to provide
requested information that is relevant and necessary to the
We will not in any like or related manner interfere with, restrain,
or coerce any of you in the exercise of your rights guaranteed by Section 7 of
the Act.
We will promptly furnish the
[1] Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kirsanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Schaumber and Member Liebman constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act.
[2] We
grant the General Counsel’s unopposed motion to correct the judge’s notice to
change the name of the
[3] Member
Liebman dissented in
[4] Sec.19.5C provides, in part, that:
In areas where the workload decreases, the Company will make an earnest effort to find work for affected employees by assigning them to work historically performed by non-Bargaining Unit employees.
The intent of assigning Bargaining Unit employees to non-traditional work is to prevent and/or minimize layoffs in the Bargaining Unit.
2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes
3 If this Order is
enforced by a judgment of a