Clarkson Industries

National Labor Relations Board - Board Decisions

Sep 22, 1993

312 N.L.R.B. 349 (N.L.R.B. 1993)

349
312 NLRB No. 63
CLARKSON INDUSTRIES
1 On August 19, 1991, Administrative Law Judge Karl H.
Buschmann issued the attached decision. The Respondent and Gen-
eral Counsel filed exceptions, supporting briefs, and answering
briefs.
2 No exceptions were filed to these findings, and no party contends
that the dismissed allegations still should be deferred to the griev-
ance-arbitration process. Consequently, we adopt pro forma the
judge’s dismissal of these allegations.
3 All dates are in 1989 unless otherwise noted.
Hoffman Air & Filtration Systems, Division of
Clarkson Industries, Inc. and Local Union
4496, United Steelworkers of America, AFL–
CIO–CLC. Case 3–CA–15369
September 23, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The principal issues presented in this case are
whether certain unfair labor practice complaint allega-
tions should be deferred to the parties’ contractual
grievance-arbitration procedure pursuant to the prin-
ciples of United Technologies Corp., 268 NLRB 557
(1984), and Collyer Insulated Wire, 192 NLRB 837
(1971), and whether the Respondent unlawfully refused
to furnish information requested by the Union in con-
nection with certain grievances.1
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings, and conclusions only to the extent con-
sistent with this Decision and Order.
The complaint alleges that the Respondent violated
Section 8(a)(3) and (1) of the Act by giving a discrimi-
natory warning to a union steward and violated Section
8(a)(1) by threatening to hold that steward to a higher
standard of conduct than that demanded of other em-
ployees. The complaint also alleges that the Respond-
ent violated Section 8(a)(5) and (1) by unilaterally
changing the terms and conditions of employment of
unit employees, by refusing to furnish information to
the Union, and by refusing to abide by a grievance set-
tlement. The Respondent denied having violated the
Act and argued before the judge that the entire case
should be deferred to arbitration under United Tech-
nologies Corp.
The judge found that deferral to arbitration was in-
appropriate with respect to all the allegations, and de-
cided the issues on their merits. The judge found that
the Respondent had violated the Act by issuing a dis-
criminatory warning to the steward and by threatening
the union steward. He also found that the Respondent
had violated the Act by making unlawful unilateral
changes in the plant rules, in the calculation of over-
time pay, in the amount of time allotted for conducting
union business on worktime, and in the subcontracting
out of maintenance work. The judge further found that
the Respondent had violated Section 8(a)(5) by refus-
ing to furnish information to the Union. The judge dis-
missed the other allegations of unilateral change and
the allegation that the Respondent reneged on a griev-
ance settlement.2
The Respondent excepted to the judge’s findings
that it violated the Act, and to his failure to defer these
issues to arbitration. For the reasons set forth below,
we agree with the Respondent that the unilateral
change allegations, to which exceptions were filed,
should be deferred to arbitration. We find deferral in-
appropriate, however, for the reasons set forth below,
with respect to the alleged threat and discriminatory
discipline. Further, for the reasons set forth by the
judge, we find deferral inappropriate with respect to
the alleged failure to provide information. We agree
with the judge, again for the reasons set forth in his
decision, that the Respondent violated the Act as al-
leged with respect to these allegations.
The Respondent is a New York corporation engaged
in the manufacture of centrifugal blowers, liquid filtra-
tion systems, and industrial vacuum cleaning services.
The Respondent’s production and maintenance em-
ployees have been represented by the Union for many
years. At the time of the events in question, the parties
were bound to a collective-bargaining agreement effec-
tive by its terms for 3 years from January 1, 1989.
The contract contained a management-rights clause
which stated in part that the Respondent ‘‘shall not
discriminate against any employee because of his
membership in or lawful activity in [sic] behalf of the
Union.’’ The contract also contained a grievance pro-
cedure. At step four, the grievance procedure stated in
part that ‘‘[i]f no satisfactory solution has been reached
. . . and if the grievance involves the interpretation of
application of the provisions of the Contract, the issue
may then be presented to an impartial arbitrator to be
agreed upon by the Company and the Union.’’ This
provision further stated that ‘‘[t]he arbitrator shall not
have the right or authority to subtract from or alter any
provision of this Contract, nor may the arbitrator make
any recommendations for future action by the Com-
pany or the Union.’’
I. THE ALLEGED THREAT AND DISCRIMINATION
On November 8, 1989,3 Union Steward Eli Snyder
left his work area between 10:30 and 11 a.m. On his
way to the men’s room he walked through the cafe-
teria, got a can of soup, opened it, and put it back in
the cafeteria. The time spent in the cafeteria was about
15–30 seconds. A foreman observed Snyder’s conduct,
and reported it to upper management.
On November 13, Snyder received a letter from the
manufacturing manager, Richard Shutz, stating that he
350 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 This date is also in 1989. The judge inadvertently identified it
as in 1987.
had violated the plant rule against leaving his work
area without permission and inefficient use of time.
The letter further stated that it was a formal warning
letter that would be placed in Snyder’s file. Snyder at-
tended a meeting that day with several members of
management and the union vice president. At the meet-
ing, Snyder admitted the conduct and apologized for it.
At one point during the meeting, Shutz told Snyder
that ‘‘being the steward, grievance man, that [he]
should—[he] had to represent an example to the other
men, that [he] shouldn’t have done this.’’
Snyder testified that he had never received any
verbal or written warnings for such conduct in the
past, even though the warning letter stated that he had
been warned twice before for such action. The parties
stipulated that his personnel file contained no record of
any prior warnings for such misconduct. Union Vice
President Williams testified that he had seen as many
as 10 employees, half of whom were unit employees,
enter the cafeteria on worktime, and that despite their
being observed by supervisors, none of them received
a reprimand.
II. THE ALLEGED UNILATERAL CHANGES
A. Changes in the Plant Rules
On October 2, the Respondent issued a revised set
of work rules to its employees. The rules addressed
issues such as alcohol and drug abuse, insubordination,
stealing, fighting, sleeping, immorality, job perform-
ance, and timeliness. The rules were never reviewed or
discussed with the Union prior to their publication. On
October 23, the rules were modified by the Respondent
during a grievance meeting. About the same time, the
Respondent issued a two-page document entitled ‘‘At-
tendance and Tardiness Policy.’’ These rules were put
into effect without prior notification to or bargaining
with the Union.
B. Calculation of Overtime Pay
On October 9, the Respondent instructed its payroll
office that the method of calculating overtime pay
would involve counting only the hours an employee
worked on a specific calendar day for which overtime
was claimed and not the hours worked on the prior
day. This method was a change from the past practice,
which on some occasions involved consideration of the
hours worked in the 24 hours prior to the end of a
shift for which overtime was claimed. Again, the
change was implemented without notice to or bargain-
ing with the Union.
C. The Restriction on Conducting Union Business
On September 28,4 the Respondent issued a memo-
randum addressing the subject of conducting union
business during working hours. The parties’ contract
limited employees and stewards to ‘‘a reasonable
time’’ for conferences during working hours. The Sep-
tember 28 memorandum, however, states that no such
meeting should take more than one-half hour. The
memorandum further states that if a meeting will take
longer than this, it must be done in conjunction with
a break, lunchtime, or before or after working hours.
This memorandum was issued without notice to or bar-
gaining with the Union, and the Union filed a griev-
ance over the change.
D. Subcontracting Out of Maintenance Work
On August 18, the Respondent sent a letter to the
Union notifying it of the Respondent’s intent to have
an outside service maintain the lawn care and snow re-
moval of Respondent’s premises, and inviting the
Union to contact the Respondent if it wished to discuss
the matter. This work previously had been performed
by unit employees on an overtime basis, and the work
was included in the job descriptions for the ‘‘truck
driver crane operator’’ and the ‘‘sweeper trucker.’’ The
parties discussed the matter without reaching an agree-
ment, and the Respondent subcontracted out that work
in the fall. The Respondent claims to have subcon-
tracted out similar work in the past. The Union
promptly filed a grievance.
III. DISCUSSION AND CONCLUSIONS
A. The Board’s Prearbitral Deferral Policy
The Board’s policy regarding prearbitral deferral has
undergone several changes in the last 20 years. In
Collyer Insulated Wire, 192 NLRB 837 (1971), the
Board first set forth the standards that it would apply
in determining whether, prior to arbitration, the Board
would defer a case to the parties’ contractual griev-
ance-arbitration process. The complaint in Collyer al-
leged that the Respondent violated Section 8(a)(5) and
(1) by making unilateral changes in certain wages and
working conditions. The Board found that the cir-
cumstances there weighed heavily in favor of deferral.
In so deciding, the Board considered that the dispute
arose within the confines of a long and productive col-
lective-bargaining relationship; there was no claim of
employer enmity to the employees’ exercise of pro-
tected rights; the parties’ contract provided for arbitra-
tion in a very broad range of disputes; the arbitration
clause clearly encompassed the dispute at issue; the
employer had asserted its willingness to utilize arbitra-
351CLARKSON INDUSTRIES
5 192 NLRB at 842.
6 In dismissing the complaint, the Board retained jurisdiction for
the limited purpose of ‘‘entertaining an appropriate and timely mo-
tion for further consideration upon a proper showing that either (a)
the dispute has not with reasonable promptness after the issuance of
this decision, either been resolved by amicable settlement in the
grievance procedure or submitted promptly to arbitration, or (b) the
grievance or arbitration procedures have not been fair and regular or
have reached a result which is repugnant to the Act.’’ Id. at 843
(footnote omitted).
7 198 NLRB at 530.
8 Id. at 531.
9 228 NLRB at 808–809.
10 Art. IV of the parties’ contract stated in part that the ‘‘employ-
ees covered by this agreement may not be discriminated against in
violation of the provisions of the Labor Management Relations Act,
1947, as amended . . . .’’ Id. at 560 fn. 20.
11 For this reason, the present case is distinguishable from the al-
leged threats which the Board deferred in United Technologies and
United Aircraft Corp., 204 NLRB 879 (1972). Concededly, the
grievance-arbitration clause in this case, like the clauses in the cited
cases, arguably covers the dispute, and hence an arbitrator would ar-
guably have jurisdiction. However, unlike the two cited cases, the
instant case involves a provision which limits the arbitrator’s reme-
dial authority with respect to the alleged threat.
tion to resolve the dispute; and the dispute was emi-
nently well suited to resolution by arbitration, in that
the contract and its meaning lay at the center of the
dispute.5 Accordingly, the Board dismissed the com-
plaint.6
Shortly after Collyer issued, the Board extended this
prearbitral deferral policy to cases involving 8(a)(3)
and (1) allegations. In National Radio Co., 198 NLRB
527 (1972), the Board deferred to arbitration allega-
tions that the respondent had discriminatorily sus-
pended and discharged a union representative. The
Board held that the issues presented were essentially
the same as those presented in Collyer, in that the un-
derlying dispute was over the meaning of certain con-
tract provisions. The Board recognized, however, that
the 8(a)(3) allegation added a new dimension—that of
union animus—and that unlike Collyer, the resolution
of the contract dispute might not supply the decision
in the unfair labor practice controversy.7 Despite the
Board’s ‘‘grave concerns,’’ that a contractually sound
arbitrator’s decision might fail to dispose of all issues
arising under the Act, the Board determined that the
proper course was to ‘‘adjur[e] the parties to seek reso-
lution of their dispute under the provisions of their
own contract.’’8
In 1977, a Board plurality in General American
Transportation Corp., 228 NLRB 808 (1977), rejected
the holding of National Radio and determined that the
Board would only defer in cases involving alleged vio-
lations of Section 8(a)(5) and (b)(3). The plurality rea-
soned that the protection afforded employees by the
Act is an individual right, not a group or union right,
and that in these circumstances, the Board should not
force arbitration on an alleged discriminatee.9
Seven years later, in United Technologies Corp.,
supra, a Board majority overruled General American
Transportation, reaffirmed the principles of deferral in
Collyer, and returned to the policy set forth in Na-
tional Radio of deferring to arbitration in cases alleg-
ing violations of Section 8(a)(3) and (1). United Tech-
nologies involved, inter alia, an allegation that the Re-
spondent violated Section 8(a)(1) when a foreman ad-
vised an employee and a shop steward during the
course of a first-step grievance meeting that adverse
consequences might flow if the employee decided to
process her grievance to the next step. The Board
found that the statement was cognizable under the
broad grievance-arbitration provision in the parties’
collective-bargaining agreement and that it was well
suited for deferral.10 The Board further noted that, al-
though the alleged remark was made during the proc-
essing of another grievance, the alleged misconduct did
not appear to be of the type that would render resort
to the grievance-arbitration process futile.
B. Deferral of the Alleged Threat and
Discriminatory Discipline in the Instant Case
This case presents a close question of whether to
defer the 8(a)(1) and (3) allegations presented. The
complaint alleges, and the judge concluded, that the
Respondent violated Section 8(a)(3) by warning Sny-
der. The judge found the company policy that Snyder
violated was unevenly enforced against Snyder on the
basis of his position as a union steward. The 8(a)(1)
violation was based on the fact that Snyder was told
during his disciplinary interview that he was expected
to set an example for the other employees because of
his position as steward.
The Respondent excepts to these findings, arguing
that it did not violate the Act as alleged, and that in
any event, these issues should be deferred to arbitra-
tion.
We first address the deferral argument. The threat to
Snyder is arguably covered by the language in the con-
tract prohibiting discrimination on the basis of union
membership or activity. However, the arbitration provi-
sion further states that ‘‘[t]he arbitrator shall not have
the right or authority to subtract from or alter any pro-
vision of this Contract, nor may the arbitrator make
any recommendations for future action by the Com-
pany or the Union.’’ (Emphasis added.) The contract
language would prevent an arbitrator from imposing
the functional equivalent of a ‘‘cease and desist’’ rem-
edy by the Board, for such a remedy is directed at fu-
ture actions. Deprived of the authority to impose the
equivalent of a ‘‘cease and desist’’ remedy, an arbitra-
tor consequently would be unable to fashion any ap-
propriate remedy for the alleged threat. Accordingly,
we find that deferral is not warranted.11
352 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Everlock Fastening Systems, 308 NLRB 1018 fn. 8 (1992); 15th
Avenue Iron Works, 301 NLRB 878, 879 (1991).
13 S.O.I. Roofing, 271 NLRB 1 fn. 3 (1984); Sheet Metal Workers
Local 17 (George Koch Sons), 199 NLRB 166, 168 (1972), enfd.
mem. 85 LRRM 2548 (1st Cir. 1973).
14 The judge did not provide a separate remedy in the Order for
the independent 8(a)(1) violation. This omission is corrected in our
modified Order.
15 Contrary to the judge, we find that the arbitration provision in
the parties’ collective-bargaining agreement, stating that arbitration is
appropriate where the ‘‘grievance involves the interpretation of ap-
plication of the provisions of this Contract,’’ does not limit arbitra-
tion to a narrow range of disputes. Under that provision, the conduct
involved herein is at least arguably arbitrable. Further, although an
arbitrator cannot enter ‘‘cease and desist’’ relief, he/she can enter
substantial relief for unilateral changes. That is, an arbitrator can
order restoration of the status quo ante and can order make-whole
relief. See the discussion, supra, concerning the 8(a)(3) allegation.
16 United Aircraft Corp., 204 NLRB 879 (1973), affd. 525 F.2d
237 (2d Cir. 1975). Kenosha Auto Transport Corp., 302 NLRB 888
(1991), does not require a different result. There, unlike here, the re-
spondent refused to deal with the union’s chosen representatives,
which the Board found to be a rejection of the principles of collec-
tive bargaining. The Board noted as further evidence of employer
animosity that there were allegations that the respondent had violated
Sec. 8(a)(3) and (1) by discriminatorily granting a pay raise and lay-
ing off an employee, to discourage union activities. We find that the
much less serious 8(a)(3) and (1) allegations in this case, without
further evidence that the Respondent has rejected certain basic prin-
ciples of collective bargaining, do not present sufficient reason for
us to decline to defer.
17 We do not suggest that it was inappropriate for the judge, in
determining whether to defer the other issues in this case, to con-
sider the allegation that the Respondent had reneged on a grievance
settlement. However, having declined to defer any of the issues in
the complaint, the judge proceeded to decide those issues on their
merits and found that the alleged reneging did not happen. As no
party has excepted to the judge’s finding, the alleged reneging is not
before us. The result in that this case comes to the Board in a dif-
ferent posture from that in which it was presented to the judge, that
is, no one now contends on this basis that the Respondent is insin-
cere about seeking deferral.
With respect to the alleged 8(a)(3) warning, there is
the same limitation on remedial relief. That is, the ar-
bitrator cannot enter ‘‘cease and desist’’ relief. How-
ever, unlike the 8(a)(1) allegation discussed above, the
arbitrator can enter substantial remedial relief. For ex-
ample, the arbitrator can order the rescission of the
warning and can thus render it a nullity. Thus, there
is no remedial reason to decline deferral. Nonetheless,
we shall decline deferral of this 8(a)(3) allegation be-
cause it is closely related to the 8(a)(1) allegation
which we are not deferring. The Board has consistently
held that it will not defer one issue if it is closely re-
lated to another issue that is not deferrable.12 If the
Board must hear and resolve one issue, it makes no
economic sense to refrain from deciding a closely re-
lated issue. In addition, it would not be prudent to re-
quire litigation of related issues in more than one
forum.13
For all of the foregoing reasons, we will not defer
the 8(a)(1) and (3) allegations. With respect to the
merits of the allegations, we adopt the judge’s find-
ings, for the reasons stated in his decision, that the Re-
spondent violated the Act as alleged.14
C. Deferral of the Alleged Unilateral Changes
The judge declined to defer on the alleged unilateral
changes, stating that the parties’ grievance-arbitration
procedure severely limited the scope of the disputes
which may be resolved under it, and that it provided
for arbitration in only a narrow range of disputes. Fur-
ther, the judge declined to defer on the issues involv-
ing unilateral change because he found that they were
interrelated with other nondeferrable allegations. He
also expressed the view that the restrictive arbitration
clause may inhibit an arbitrator from granting an award
which would be in the interest of the bargaining rela-
tionship or that is in accord with the policies of the
Act. Finally, the judge found that some aspects of the
Respondent’s alleged misconduct raised questions as to
the sincerity of the Respondent’s adherence to the
grievance procedure.
We disagree with the judge. In the present case, we
find that the allegations of unilateral changes concern-
ing plant rules, overtime pay and restrictions on the
conduct of union business are well-suited for deferral
under the standards of Collyer and United Tech-
nologies. The parties have had a long and productive
bargaining relationship. Their collective-bargaining
agreement provides for arbitration in a wide range of
disputes, and the arbitration clause clearly encompasses
the issues presented by the alleged unilateral
changes.15 The Respondent has stated that it is willing
to utilize the grievance-arbitration procedure to resolve
these disputes and that it will waive any potential time-
liness and/or procedural defenses to arbitrating these
issues.
With respect to whether the employer has dem-
onstrated animosity toward the employees’ exercise of
protected rights, we find that here, the single 8(a)(1)
allegation of a threat to hold the union steward to a
higher standard and the single 8(a)(3) allegation of a
discriminatory warning, are not, by themselves, so
egregious as to render the use of the arbitration ma-
chinery unpromising or futile. In a case involving simi-
lar alleged misconduct, the Board deferred.16
We also find that the Respondent’s alleged reneging
on a grievance settlement is not an impediment to de-
ferral. As we have noted, the judge dismissed that alle-
gation on the merits, and no party has excepted to this
decision in that regard, or argues that the issue should
be deferred to the grievance-arbitration process. Thus,
we find no persuasive evidence that the Respondent is
not sincere in seeking to have the unilateral change al-
legations decided through the parties’ private dispute
resolution processes.17
353CLARKSON INDUSTRIES
18 Steelworkers v. Gulf Navigation, 363 U.S. 574, 582–583 (1960).
19 See Transport Service Co., 282 NLRB 111 (1986). Cf., e.g.,
American Commercial Lines, 291 NLRB 1066, 1069 (1988)
(‘‘[W]hen . . . an allegation for which deferral is sought is inex-
tricably related to other complaint allegations that are either inappro-
priate for deferral or for which deferral is not sought, a party’s re-
quest for deferral must be denied.’’); S.O.I. Roofing, 271 NLRB 1
fn. 3 (1984) (no partial deferral where the arguably deferrable allega-
tions cannot be deferred). Although there is dictum in Sheet Metal
Workers Local 17 (George Koch Sons), supra, 199 NLRB at 168,
suggesting that the Board is reluctant to defer issues under Collyer
if it is declining to defer other issues in the same proceeding, the
disposition of the case is entirely consistent with the principles we
have applied here in deciding to resolve some of the issues and defer
others. In George Koch the potentially deferrable issue (the strike)
and the nondeferrable issue (the union fine) were intertwined, in that
both turned on whether the individual who was fined was a rep-
resentative of the employer within the meaning of Sec. 8(b)(1)(B)
of the Act.
20 Because we are deferring the unilateral change allegations, we
need not address the General Counsel’s exceptions, which concern
only the appropriate remedy for two of those alleged violations.
21 Postal Service, 307 NLRB 429 (1992); Postal Service, 280
NLRB 685 fn. 2 (1986); United Technologies Corp., 274 NLRB
504, 505 (1985).
Because the information refusal allegations in this case are not
closely related to any of the unilateral change allegations, the failure
to defer the former does not affect the deferrability of the latter. Cf.
Postal Service, 302 NLRB 918 (1991) (alleged unilateral change not
deferred to arbitration process because ‘‘intimately connected’’ to
the nondeferrable refusal to grant information allegation).
22 Jurisdiction of this proceeding is retained for the limited purpose
of entertaining an appropriate and timely motion for further consid-
eration on a proper showing that either (a) the dispute has not, with
reasonable promptness after the issuance of this Decision and Order,
either been resolved by amicable settlement in the grievance proce-
dure or submitted to arbitration, or (b) the grievance of arbitration
procedures have not been fair and regular or have reached a result
which is repugnant to the Act.
D. Deferral of the Subcontracting Issue
With respect to the subcontracting dispute, we con-
clude that this issue also meets our deferral policy, but
for somewhat different reasons. The contract provides
for arbitration ‘‘if the grievance involves the interpreta-
tion of application of the provisions of the Contract,’’
but there is no provision in the contract specifically ad-
dressing subcontracting. The Union, however, did file
a grievance on October 4 over the subcontracting out
of unit work.
In E. I. du Pont & Co., 293 NLRB 896 (1989), the
Board addressed a similar situation. There, the em-
ployer was alleged to have unilaterally altered employ-
ees’ work assignments. Despite the absence of specific
contractual language addressing the issue, the Board
decided to defer the case to arbitration. The Board
pointed to the fact that the union had filed a grievance
over an earlier, but similar, dispute, and had processed
the grievance to the point of requesting arbitration,
thereby indicating that the union and the employer
both considered the work assignments to be subject to
the grievance-arbitration process, notwithstanding the
absence of specific contract language. Id. at 897.
The Board also noted that past practice can be found
by arbitrators to be the ‘‘law of the shop,’’ and thus
enforceable through arbitration. Further, the Board re-
lied on the Supreme Court’s holding that, where Sec-
tion 301 suits to compel arbitration are concerned, ar-
bitration should be ordered ‘‘unless it may be said with
positive assurance that the arbitration clause is not sus-
ceptible to an interpretation that covers the asserted
dispute.’’18
In the present case, we also find that the fact that
the Union filed a grievance over the subcontracting
issue and the Respondent’s assertion that, inter alia,
this matter should be deferred to the greivance-arbitra-
tion process, indicates that both the Union and the Re-
spondent consider the issue to be covered by the par-
ties’ grievance-arbitration procedure. Further, there is
no contractual language or other evidence that would
permit us to say ‘‘with positive assurance that the arbi-
tration clause is not susceptible to an interpretation that
covers the asserted dispute.’’ We find, contrary to the
judge, that deferral is appropriate.
Finally, with respect to both the alleged unilateral
changes discussed in section III,C, and the subcontract-
ing issue discussed in section III,D, we find that these
deferrable issues are not in any way factually or le-
gally interrelated with the issues presented by the al-
leged threat or alleged discriminatory discipline. We
therefore see no reason that we should decline to defer
that part of the case which is eminently well-suited to
resolution through the parties’ agreed-on machinery for
such disputes.19 Accordingly, we reverse the judge and
find that the issues concerning the alleged unilateral
changes shall be deferred to the parties’ grievance-arbi-
tration procedures.20
E. Deferral of Information Issue
We agree with the judge that the 8(a)(5) information
request allegations are not deferrable to arbitration.21
On the merits, we agree with the judge’s finding of a
violation.
ORDER22
The National Labor Relations Board orders that the
Respondent, Hoffman Air & Filtration Systems, Divi-
sion of Clarkson Industries, Inc., Syracuse, New York,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling employees that they will be held to a
higher standard of conduct because of their union ac-
tivities.
(b) Issuing warnings or otherwise discriminating
against employees because of their union activity.
(c) Refusing to furnish the Union with information
relevant and reasonably necessary to its performance of
354 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
its obligations as bargaining representative of the em-
ployees in the following appropriate unit:
All production and maintenance employees em-
ployed by Respondent at its Syracuse, New York
facility, including all plant clerical employees,
shipping and receiving clerks, truck drivers and
inspectors; but excluding all office clerical em-
ployees, production control employees, time-
keepers, research building employees, stores
records employees, guards, professional employ-
ees, and all supervisors as defined in the Act.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind its discriminatory action against Eli Sny-
der and remove the disciplinary warning and any ref-
erence to it from the personnel files and notify the em-
ployee in writing that this has been done and that it
will not be used against him in any way.
(b) Post at its facilities in Syracuse, New York, cop-
ies of the attached notice marked ‘‘Appendix.’’23 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 3, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately on receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT tell employees that they will be held
to a higher standard of conduct because of their union
activities.
WE WILL NOT issue warnings or otherwise discrimi-
nate against employees because of their union activity.
WE WILL NOT refuse to furnish the Union with in-
formation relevant and reasonably necessary to its per-
formance of its obligations as bargaining representative
of employees in the following appropriate unit:
All production and maintenance employees em-
ployed by us at our Syracuse, New York facility,
including all plant clerical employees, shipping
and receiving clerks, truck drivers and inspectors;
but excluding all office clerical employees, pro-
duction control employees, timekeepers, research
building employees, stores records employees,
guards, professional employees, and all super-
visors as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL rescind our discriminatory action against
Eli Snyder and remove the disciplinary warning and
any reference to it from the personnel files and notify
him in writing that this has been done and that it will
not be used against him in any way.
HOFFMAN AIR & FILTRATION SYSTEMS, DIVISION
OF CLARKSON INDUSTRIES, INC.
Ronald Scott, Esq., for the General Counsel.
Norman A. Quandt, Esq. (Clark, Paul, Hoove & Mailards),
of Atlanta, Georgia, for the Employer.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge. This
case was tried in Syracuse, New York, April 30 and May 1–
3, 1990. The charges were filed by the Union on December
28, 1989 (amended February 7, 1990), and the complaint
issued on February 13, 1990. The issues are, in substance (a)
whether the General Counsel should have deferred the unfair
labor practice charges to the arbitration provision of the col-
lective-bargaining agreement, (b) whether the Respondent
should be found to have violated Section 8(a)(1) and (3) of
the National Labor Relations Act (the Act) for disciplining
an employee because of his capacity as a union official, and
(c) whether the Respondent should be found to have violated
Section 8(a)(5) and (1) and/or Section 8(d) of the Act be-
cause of its unilateral changes and implementations of poli-
cies, for its failure to abide by a grievance settlement, and
for refusing to furnish the Union with certain information.
On the entire record, including my observation of the wit-
nesses, and after consideration of the brief filed by the Gen-
eral Counsel and the Company, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Hoffman Air & Filtration Systems, Divi-
sion of Clarkson Industries, Inc., is a New York corporation
355CLARKSON INDUSTRIES
located in Syracuse, New York, where it is engaged in the
manufacture of centrifugal blowers, liquid filtration systems,
and industrial vacuum cleaning systems. With sales and ship-
ments from its Syracuse, New York facility of products in
excess of $50,000 directly to points outside the State, the Re-
spondent is admittedly an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
The Union, Local Union 4496, United Steelworkers of
America, AFL–CIO–CLC, is a labor organization within the
meaning of Section 2(5) of the Act.
Facts
The Respondent, Hoffman Air & Filtration Systems, is a
division of Clarkson Industries which is a subsidiary of Brit-
ish Tire and Rubber Co. The corporate hierarchy includes
George Bagnall as the president of Hoffman Air, Richard
Shutz, manager of manufacturing, Richard Gozigian, man-
ager of production and field service, and Linda Becker, per-
sonnel manager. The Company’s production and maintenance
employees are, and for many years have been, represented by
Local Union 4496 of the Steelworkers. Their collective-bar-
gaining agreement is effective for 3 years, beginning January
1, 1989. The president of Local Union, James Gray, has been
in the position since May 1988. Hubert M. Berger, the staff
representative of International Union since 1980, participated
in the collective-bargaining negotiations.
Concurrent with the relatively recent personnel changes at
the Company—the appointments of Bagnall in July 1989 and
Shutz in April 1989—and during Gray’s 2-year tenure with
the Union, numerous grievances were filed giving rise to
some of the allegations in the complaint.
The allegations, consisting of one discriminatory warning
to a union official, several unilateral changes, a reneged
grievance settlement, and a refusal to furnish information, are
initially subject to a determination whether they should be re-
solved through the arbitration process of the collective-bar-
gaining agreement.
Deferral to Arbitration. In its answer to the complaint and
on the record prior to the taking of testimony, the Respond-
ent moved to have all pending allegations deferred for reso-
lution to the grievance procedure, including arbitration, con-
tained in the collective-bargaining agreement (G.C. Exh.
1(g), Tr. 11). The Respondent renewed its motion at the con-
clusion of the General Counsel’s case and at the conclusion
of the hearing (Tr. 604, 834). The matter was taken under
advisement. The Respondent argues in its brief that its mo-
tion should be granted and that all 8(a)(1), (3), and (5) alle-
gations in the complaint be deferred to arbitration.
The General Counsel opposed the Respondent’s motion
and argues that this case falls into several exceptions to the
Board’s ‘‘policy favoring prearbitral deferral’’ in unfair labor
practice cases. Recognized exceptions may be found in in-
stances of information requests, unilateral changes in work-
ing conditions, acts of discrimination, and repeated mis-
conduct.
Both sides agree that the leading case governing the issue
of deferral is Collyer Insulated Wire, 192 NLRB 837 (1971).
There, and in United Technologies Corp., 268 NLRB 557,
558 (1984), the Board stated its intentions to defer to the
contractual arbitration procedure under the following cir-
cumstances:
The dispute arose within the confines of a long and
productive collective-bargaining relationship; there was
no claim of employer animosity to the employees’ exer-
cise of protected rights; the parties’ contract provided
for arbitration in a very broad range of disputes; the ar-
bitration clause clearly encompassed the dispute at
issue; the employer had asserted its willingness to uti-
lize arbitration to resolve the dispute; and the dispute
was eminently well suited to resolution by arbitration.
In United Technologies Corp., the Board decided that de-
ferral is not only appropriate under these guidelines in mat-
ters of contractual disputes but also in instances of 8(a)(1)
and (3) allegations. The Board recently held that deferral
under Collyer was appropriate in a case involving unilateral
implementation of substance abuse and drug-testing pro-
grams. Inland Container Corp., 298 NLRB 715 (1990).
There the Board cited E. I. du Pont & Co., 275 NLRB 693
(1985), in support of its holding that a company’s unilateral
actions or changes in the condition of employment are sub-
ject to deferral even though no specific contract provisions
were in dispute. On the other hand, if unilateral changes,
such as a wholesale repudiation of wage rates, amount to ‘‘a
basic repudiation of the bargaining relationship,’’ deferral be-
comes inappropriate. Oak Cliff-Golman Baking Co., 207
NLRB 1063 (1973), enfd. 505 F.2d 1302 (5th Cir. 1974),
cert. denied 423 U.S. 826 (1975).
In the present case, the allegations are numerous and com-
plex, ranging from one allegation of discriminatory conduct
to allegations of unilateral changes in the employees’ work-
ing conditions and a request for information. The Respondent
has repeatedly declared its willingness to utilize arbitration to
resolve the disputed issues. It is also clear that the issues in-
volving the dispute arose within the confines of a long and
productive collective-bargaining relationship. The record
shows that this relationship has existed for many years and
that in contrast to almost 100 grievances filed between April
1989 and April 1990, 15 were filed during the same monthly
period from 1980 to 1989 and only 12 from 1987 to 1988
(Tr. 616, 162–163). The instant dispute, consisting of 8(a)(1)
and (3) misconduct, as well as 8(a)(5) unilateral changes in
conditions of employment may, to that extent, be properly
deferrable to arbitration. However, the allegations of Section
8(a)(5) and (1) also include the Respondent’s alleged refusal
to furnish information to the Union relevant to its ability to
function as collective-bargaining agent and the Respondent’s
refusal to abide by the settlement of a grievance. The Board
has not deferred cases involving requests for information.
Postal Service, 276 NLRB 1282, 1285 (1985). Moreover, a
respondent’s refusal to abide by the settlement of a grievance
goes to the very substance of the bargaining relationship.
Significantly, the collective-bargaining agreement contains
the following provision (G.C. Exh. 2, p. 39):
Step Four: If no satisfactory solution has been
reached in accordance with Step 3 within fifteen (15)
working days after the receipt of the Company’s answer
under Step 3, and if the grievance involves the interpre-
tation of application of the provisions of this Contract,
the issue may then be presented to an impartial
arbltrator to be agreed upon by the Company and the
Union. Within ten (10) days after electing to arbitrate,
356 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Company and the Union will meet for the purpose
of agreeing upon an arbitrator. If no arbitrator is se-
lected by this process, the Company and Union, within
five (5) days thereafter, will attempt to select an arbitra-
tor from a list furnished by the Federal Mediation and
Conciliation Service. If the parties are not mutually able
to agree upon an arbitrator from this list, a second list
shall be requested. If no arbitrator can be mutually se-
lected from said second list, which shall consist of
seven (7) names, then the parties shall select an arbitra-
tor by alternately striking the proposed names from the
list until one is left.
The arbitrator shall not have the right or authority to
subtract from or alter any provision of this Contract,
nor may the arbitrator make any recommendations for
future action by the Company or the Union. The deci-
sion of the arbitrator, within the scope of his authority,
shall be final and binding upon the Company, the
Union, and the employee or employees concerned. The
compensation and expenses of the Company and Union
counsel, witnesses, and others who act for them in the
presentation of the case will be paid by the respective
parties. The compensation and expenses of the arbitra-
tor and the rental of a hearing room shall be paid equal-
ly by the Company and the Union. [Emphasis added.]
The underlined portion of the proviso severely limits the
scope of the disputes which may be resolved under the griev-
ance procedure. Only ‘‘if the grievance involves the interpre-
tation of application of the provisions of this contract’’ may
the issue be presented to arbitration. Moreover, the arbitrator
does not have the right to ‘‘make any recommendation for
future action by the Company or the Union.’’ By these
terms, the parties have agreed to provide for arbitration in
only a narrow range of disputes. Because the contract fails
to provide for arbitration in a very broad range of disputes,
as contemplated by the Board in Collyer or United Tech-
nologies, supra, I find that the entire case is not deferrable.
Moreover, the deferrable issues are interrelated with the other
allegations and the restrictive arbitration clause limiting the
authority of the arbitrator from making ‘‘any recommenda-
tions for future action’’ may inhibit an arbitrator from grant-
ing an award which would be in the interest of the bargain-
ing relationship or one which is in accord with the policies
of the Act. Finally, some of the allegations question the sin-
cerity of Respondent’s adherence to the grievance procedure.
I accordingly find that deferral in this case is inappropriate.
The motion by the Respondent is therefore denied.
Discriminatory and Other Misconduct. The complaint al-
leges that the Respondent violated Section 8(a)(3) and (1) of
the Act by issuing a written warning to employee Eli Snyder.
The Respondent does not dispute that Snyder was rep-
rimanded but argues that he violated company policy and
that a supervisor’s remark referring to Snyder’s union activ-
ity should be regarded as an innocuous comment. The Gen-
eral Counsel submits that Snyder was singled out for dis-
cipline because he was a union steward and that the super-
visor’s remark supports that conclusion. The facts are not se-
riously in dispute. On November 13, 1989, Snyder received
the following letter from Richard Shutz, manufacturing man-
ager (G.C. Exh. 3):
Subject: Violation of Plant Rules #19g&h (dated
10/2/89)
On Wednesday, November 8, 1989 at 11:30PM, you
were observed entering the lunchroom with a can of
food in your hand. You did not have permission to be
away from your work station and were not performing
a task relative to your assigned job. You have been
warned of this same violation on two previous occa-
sions, once prior to the issuance of the new Plant Rules
and Regulations, and once since the current Plant Rules
and Regulations were put into effect on October 2,
1989.
This letter is a formal warning letter which will be
placed in your personnel file. Any future violation will
be dealt with according to the next disciplinary action
step.
Snyder, who has been in the Respondent’s employ for 16
years, testified that on November 8, 1989, between 10:30 and
11 a.m. he left his work area. On his way to the men’s room
he walked through the cafeteria, ‘‘got a can of soup and . . .
opened it up and . . . put it back in the cafeteria’’ (Tr. 405).
The time spent in the cafeteria lasted, in Snyder’s estimation,
no more than 15 to 30 seconds. Foreman Steve Moses ob-
served his conduct and informed upper management. On No-
vember 13, 1989, Snyder attended a meeting with several
members of management, including Vice President Andrew
Williams, Production Manager Richard Gozigian, as well as
Shutz and Moses. Gozigian handed him the written rep-
rimand and asked him to read it. Snyder responded to the let-
ter admitting the accusation and apologizing for his conduct
(Tr. 411). At one point during the course of the meeting,
Shutz made the comment that Snyder ‘‘being the steward,
grievance man, that [he] should—[he] had to represent an ex-
ample to the other men, that [he] shouldn’t have done this’’
(Tr. 409). According to Snyder, other employees who com-
mitted the same violation and left their work station to go
to the cafeteria were not reprimanded. From October 1989 to
May 1990, Snyder knew of 8 to 10 other employees who en-
tered the cafeteria on worktime. Snyder did not know wheth-
er any foremen had observed these employees. Snyder also
testified that he had never received any written or verbal
warnings (and later reduced to writing) for such conduct be-
fore, even though the written warning states that he had been
warned twice before (Tr. 406–407, 411–412). Indeed the par-
ties stipulated that Snyder’s personnel file did not contain
any written evidence for similar misconduct (Tr. 412).
Shutz’ recollection of the meeting did not materially differ
with that of Snyder, except that, according to Shutz, he did
not refer to Snyder’s status as union steward and his mem-
bership on the grievance committee until the end of the
meeting. He said the following (Tr. 698):
As an aside, as we prepared to dismiss or as the
meeting broke up, I indicated to Mr. Snyder that I was
disappointed in his performance; that he was a member
of the grievance committee, he not only had been
present during the presentation of the rules on October
2nd, but he had been present in the meeting on October
10th, present again on October 23rd and had ample
knowledge of the rules; plus the fact he had been
warned prior to the rules that he had been in the lunch-
357CLARKSON INDUSTRIES
room on unauthorized time, he was given one verbal
warning after the rules of October 2nd were put into
place. And I told him that I was disappointed in him;
that as a member of the committee, that he was looked
upon by other people as an example and if he did
things that were against these policies, that that would
be a bad example for other people.
Foreman Moses remembered the episode as follows (Tr.
788–789):
He read the letter and asked if there was any com-
ments from Eli or explanations, and Eli said no. And
Dick said something about as being a steward, that you
should be well aware of the plant rules and regulations
and that, you know, you should try to set an example
for other union members.
The union representative similarly recalled that Shutz’
‘‘exact words were, being in the position that you were in,
being a union steward, you should set an example’’ (Tr.
364).
Whether Shutz’ reference to Snyder’s union activity was
made halfway through the disciplinary meeting or at the con-
clusion did not change the impact or the significance of the
remark. Clearly, it was not merely an ‘‘offhanded expression
of disappointment’’ as concluded by the Respondent. Shutz’
remark was an expression that Snyder was held to a higher
standard, and that he was expected to set an example for the
rest of the employees. Moreover, the record shows that Sny-
der was indeed treated differently in this instance. The un-
equivocal testimony of Williams, a credible witness, showed
that he had observed as many as 10 employees, half of
whom were unit employees, enter the cafeteria on
worktime—the same violation for which Snyder was rep-
rimanded—without receiving any warning, even though their
conduct was observed by supervisors (Tr. 371–372). Wil-
liams also explained that verbal warnings are generally re-
duced to a written document as are written warnings and
made a part of the employee’s personnel record (Tr. 367,
G.C. Exh. 38). Because the parties stipulated that Snyder’s
personnel file contained no written documents reflecting any
prior reprimands, it is clear that the written warning received
by Snyder incorrectly reflected that he had received prior
verbal warnings.
Respondent’s suggestion that the reprimands given to two
employees, Matthew Wojtalewski and Isaiah Williams, are
identical to the one at issue, is not persuasive (R. Exhs. 2,
14). In one reprimand the employee was accused of eating
at his work station during working time, arriving too early
for work, and loitering in the bathroom, and the other rep-
rimand related to an employee’s failure to punch the time-
clock in accordance with company policy.
On balance, the record there shows that the company pol-
icy that Snyder violated was not evenly enforced. Indeed, he
was the only one who received a written reprimand even
though the Employer must have been aware that other em-
ployees had engaged in the same misconduct. The facts that
Snyder was a union steward and was told during his discipli-
nary conference attended by representatives of management
and the Union that he was expected to set an example to the
other employees because he was a union steward leads to the
inference that he was singled out because of his union activi-
ties. Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983).
In addition it is clear that Shutz’ remark during that con-
ference has a coercive effect and tended to interfere with the
employee’s union activity, in violation of Section 8(a)(1) of
the Act.
Unilateral Changes. The complaint next alleges that the
Respondent made numerous changes in the employees’
working conditions without bargaining with the Union. The
first such changes were plant rules. The evidence is undis-
puted that effective October 2, 1989, the Respondent issued
a revised set of work rules to the employees (Tr. 685, G.C.
Exh. 7). Shutz testified that he and Linda Becker, personnel
manager, ‘‘basically put the rules and regulations together’’
and then obtained the approval of the president, George
Bagnall (Tr. 685). When asked whether the rules were re-
viewed or discussed with the Union prior to their publication,
Shutz unequivocally answered ‘‘no’’ (Tr. 685). Shutz ex-
plained his failure to discuss the issuance of the revised rules
with the Union as follows (Tr. 685):
I felt that the company has the right to publish work
rules, policies as business requires. I believe the con-
tract gives us the authority to establish policies and pro-
cedures, and it is an understood management’s right to
initiate and to change, as may be required, company
rules and policies.
This explanation accords with the Respondent’s argument
that the Company had the right, particularly under its man-
agement-rights clause, to publish such work rules without
prior notice or offer to bargain with the Union and that the
Union’s only recourse was to challenge them through the
grievance procedure on the grounds that they violate the col-
lective-bargaining agreement or that they are arbitrary, capri-
cious, or discriminatory. The General Counsel, on the other
hand, argues that the revised rules are a mandatory subject
of bargaining which affect the employees’ working condi-
tions and that the Respondent violated his duty to bargain
with the Union.
The new rules, entitled ‘‘Company Rules and Regula-
tions’’ consist of 19 paragraphs and numerous subparagraphs
on 3 printed pages and cover a series of definitions of mis-
conduct, such as alcohol and drug abuse, insubordination,
stealing, fighting, sleeping, immorality, job performance,
timeliness, etc. (G.C. Exh. 7). These rules were obviously de-
signed to govern the employees’ conduct at work and clearly
were conditions of employment. On October 2, 1989, man-
agement informed the employees during several meetings
that these rules were in effect (Tr. 688). The Respondent ulti-
mately revised the rules on October 23, 1989, during a griev-
ance meeting (Tr. 688–689, Tr. 55, G.C. Exh. 11). These re-
vised rules differed slightly, notably in the area of alcohol
and drug abuse, and were communicated to the employees in
April 1990 (Tr. 692). About the same time, the Respondent
issued its ‘‘Attendance and Tardiness Policy’’ which in a
two-page document carefully and explicitly details the Com-
pany’s rules and sanctions governing absenteeism (G.C. Exh.
12, Tr. 693). These rules were put into effect without prior
notification to the Union and without making an attempt to
bargain about them (Tr. 37, 55).
358 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Respondent argues in its brief that the plant rules sim-
ply modified the rules last issued on May 1, 1979 (G.C. Exh.
5), which had been effectuated on the same unilateral basis
and without union opposition (R. Br. p. 19–20). However, an
analysis of the newly issued rules, compared with the old
ones, shows that significant changes were made. The General
Counsel in his brief properly points to several material
changes (G.C. Br. p. 18–19). For example, the new rules
governing employees’ conduct relating to immorality, to
gambling and solicitation, the use of company telephones,
the posting of notices in work areas or bulletin boards, are
completely new (G.C. Exhs. 7, 11, pars. 9, 16–18). Further-
more, the new plant rules define insolence as a new incident
of misconduct (par. 2(b)). And an employee’s tardiness and
presence at his work area or work station have received new
definitions with the specificity of seven paragraphs of expla-
nation (G.C. Exh. 11, par. 19). Finally the Company’s ‘‘Dis-
ciplinary Action’’ chart has also been revised so as to in-
crease the discipline in several areas and to justify discharge
for numerous first offenses (G.C. Exhs. 5, 11).
Here the Union had not waived its right to bargain with
the Company and the new rules certainly govern the employ-
ees’ working conditions in every respect. Not only was the
Union deprived of its opportunity to bargain about the new
and changed definitions of misconduct but also about the
general tightening of the discipline imposed for violations of
all rules, new and old.
The Respondent contends that the ‘‘management’’ provi-
sion in the collective-bargaining agreement operates as a
waiver of the duty to bargain. That provision is contained in
article IV of the bargaining agreement (G.C. Exh. 2):
The entire management of the Company and the de-
termination and control of its policies are vested exclu-
sively in the Company, provided, however, that in the
exercise of such functions the Company shall comply
with the provisions of this contract and shall not dis-
criminate against any employee because of his member-
ship in or lawful activity in behalf of the Union.
This proviso is not a ‘‘clear and unmistakable’’ waiver of
bargaining rights. Metropolitan Edison Co. v. NLRB, 460
U.S. 693, 708 (1983); Bath Iron Works Corp., 302 NLRB
898 (1991). A general management-rights clause does not
operate as a waiver over the specific conditions of employ-
ment. Litton Systems, 283 NLRB 973 (1987); Proctor Mfg.
Corp., 131 NLRB 1166 (1961). Moreover, the mere fact that
the Union may not have bargained over the plant rules in
1979 does not constitute a waiver of its right in 1989. It is
well settled that plant rules are considered mandatory sub-
jects of bargaining and that the Company’s unilateral change
of plant rules violates Section 8(a)(5) and (1) of the Act.
Murphy Diesel Co. v. NLRB, 454 F.2d 303 (7th Cir. 1971);
Production Plated Plastics, 254 NLRB 560 (1981); Our
Way, Inc., 268 NLRB 394 (1983); Accordingly, I find that
the Respondent violated Section 8(a)(5) and (1) of the Act.
Change in the Workweek. The complaint next charges that
the Respondent unilaterally changed the workweek starting
time for its unit employees. The Respondent states flatly that
there ‘‘is no evidence in this case to support this allegation’’
and that ‘‘Hoffman’s work week starting time (7:30 a.m.
Monday morning) has not changed’’ (R. Br. p. 25). The Gen-
eral Counsel submits that the evidence in this issue, consist-
ing of Gray’s testimony and a letter of agreement, are insuf-
ficient to prove that the Respondent actually made the
change (Tr. 67–74, G.C. Exh. 12). Accordingly, the General
Counsel candidly concedes that this allegation ‘‘has not been
proven by the preponderance of the evidence’’ (G.C. Br. p.
24). I, accordingly, dismiss this allegation of the complaint.
Overtime Pay. The Respondent unilaterally changed the
policy of paying for overtime according to the complaint.
The record shows that the Company took action on October
9, 1989, when Shutz instructed the payroll office by an inter-
office memorandum concerning ‘‘Payment of Overtime’’ as
follows (G.C. Exh. 18):
All daily overtime pay will be calculated as follows
beginning immediately:
Time worked over 8.0 Hrs. in a shift will be paid at
the time and one half rate. The time will start at the
time that the employee punches in, and end when he
punches out regardless of the hours worked the pre-
vious day. This is for Tues. thru Fri. only.
Time worked on Monday will be paid the same way,
except that if an employee worked 40.0 straight-time
(not including daily overtime or Sat. & Sun. overtime)
hrs. the previous week, they will get paid at the time
and one half rate for any time worked prior to 7:00 AM
regardless of how many hours that they work in total
that Monday.
All other rules regarding the payment of overtime re-
main unchanged. If you have any questions regarding
this matter, please call.
The Respondent concedes that ‘‘prior to October 9, 1989,
the Company had followed an inconsistent method of deter-
mining’’ an employee’s daily overtime rate but argues that
its memorandum was not a new policy directive but rather
a clarification of existing policy (R. Br. p. 28). ‘‘Not so,’’
argues the General Counsel, because the Respondent had
used inconsistent and ‘‘different ways before settling on one
consistent policy’’ (G.C. Br. p. 22). In this regard, the record
shows that prior to the interoffice directive, employees re-
ceived paid overtime for the time worked prior to the 7:30
a.m. shift even if the employee worked less than 8 hours on
that day, so long as the employee had completed an 8-hour
shift on the prior day. The Union had filed a grievance on
that basis on September 19, 1989, because employee James
Gray was not paid for overtime on September 6, 1989 (G.C.
Exh. 13). The grievance was initially denied because the em-
ployee had not worked a full 8 hours on the prior day (Tr.
710). The grievance was ultimately settled on October 9,
1989, in favor of the employee and reflected the new policy
(G.C. Exh. 14, Tr. 711). One of the main distinctions be-
tween the policies is that the determination on overtime pay
under the old but inconsistent policy took into account the
hours worked on the prior day while the new policy required
consideration of the hours worked on the particular day for
which overtime was claimed (Tr. 77–78, 710–711). The par-
ties are in agreement that prior to the October 9 directive,
the Respondent’s policy ‘‘was not done on a consistent
basis’’ (Tr. 77, 710). And the purpose of the change in pol-
icy was, in the words of Shutz who initiated the change, ‘‘to
make it a consistent basis’’ (Tr. 710). The record clearly
359CLARKSON INDUSTRIES
shows and the Respondent cannot dispute that the new policy
was a ‘‘change’’ and that it was accomplished without an at-
tempt to bargain with the Union. Under these circumstances,
I find that the Respondent’s change of past practice of pay-
ing for overtime without affording the Union the right to bar-
gain violated Section 8(a)(5) and (1) of the Act. Liberty
Cleaners, 227 NLRB 1296 (1977).
Hoffman Time. The complaint next alleges a violation of
the Act as a result of the Company’s change of ‘‘Hoffman
time.’’ By ‘‘Inter office Memo,’’ dated September 12, 1989,
management advised its various departments and the bargain-
ing unit personnel as follows (G.C. Exh. 19):
Effective Monday, September 18, 1989, at 12:01
a.m., ‘‘Hoffman Time’’ will be eliminated. The Plant
will change to Eastern Standard/Eastern Daylight Sav-
ings Time as appropriate.
For all Bargaining Unit and Shop Supervisory Per-
sonnel the official starting time will remain at 7:30 a.m.
and the official quitting time will remain at 4:00 p.m.
Please take whatever actions may be appropriate to
make sure that you arrive on time on Monday, Septem-
ber 18, 1989, and each day thereafter.
According to the testimony of Richard Shutz, ‘‘It’s a noti-
fication that at 12:01 AM on Monday, September 18, 1989,
that Hoffman time will be eliminated, the plant will change
to Eastern Standard and Daylight Savings Time as appro-
priate. So, it was changing from Hoffman time to real time’’
(Tr. 700). Hoffman time was defined by James Gray as fol-
lows (Tr. 102):
Hoffman time was time—five minutes fast is what it
was. Time was five minutes fast. We started at 7:30,
but the time actually was 7:25. By the clocks was 7:30
at Hoffman.
The purpose was to alleviate the traffic on Thompson
Road which was lined with other plants with similar working
hours (Tr. 103). Gray testified that the longstanding practice
of permitting the employees to come in 5 minutes early and
leave 5 minutes earlier actually saved them 10 to 15 minutes
in travel time. The Union filed its grievance on September
12, 1989. The Company denied the grievance stating that the
‘‘Contract clearly states that the Company has the right to
starting times . . . .’’ (G.C. Exh. 20.) Shutz unequivocally
testified that the Company did not discuss the elimination of
Hoffman time in advance with the Union (Tr. 701). He also
explained that the reason for the Company’s action was to
avoid the inherent confusion when the administrative offices
were moved to the location adjoining the manufacturing
plant and the times differed in these facilities by 5 minutes
(Tr. 701). The unilateral change was discussed in the context
of the grievance but without a recognition by the Company
that the Union had a right to bargain over the issue.
The collective-bargaining agreement provides as follows
(G.C. Exh. 2, p. 7):
Determination of the starting time in the changes of
the daily and weekly work schedules will be made by
the Company and such schedules may be changed by
the Company from time to time to suit varying condi-
tions of the business; provided, however, that indis-
criminate changes shall not be made in such schedules
and provided further that changes deemed necessary by
the Company shall be made known to the Grievance
Committeeman or Committeemen of the Union as far in
advance of such changes as is possible.
The Company failed to notify the Union of the changes in
working time. Nevertheless, this proviso gave the Company
the right to determine the starting time and the work sched-
ules ‘‘to suit varying conditions of the business.’’ The Union
had the right to file a grievance over the Company’s failure
to give notice to the grievance committeeman or other com-
mitteemen of the Union, but the Union had clearly and un-
mistakably waived its right to bargain over the change in
working time by the express provision in the contract. Ac-
cordingly, I dismiss this allegation in the complaint.
Overtime Assignment for Sundry Clerks. It is alleged that
the Respondent’s change of the overtime assignment policy
for sundry clerks violated the Act. The parties are in agree-
ment that the challenged practice of assigning overtime to its
sundry clerks complied with the collective-bargaining agree-
ment and that it did not comply with a prior negotiated ‘‘side
agreement.’’ The question is which is controlling the issue,
the side agreement or the collective-bargaining agreement.
The Company employed two or three sundry clerks who
were sometimes called after hours to work. The ‘‘round
robin’’ procedure of calling employees by seniority was
changed in 1988 by an agreement following a grievance filed
by sundry clerk Leonard Mitchell. As the less senior of the
sundry clerks, he wanted the assignments rotated. The agree-
ment, dated January 8, 1988, established the rotation assign-
ments (G.C. Exh. 10).
Article V, paragraph 9, of the collective-bargaining agree-
ment is entitled ‘‘overtime distribution procedure’’ and pro-
vides for a ‘‘round robin distribution’’ which ‘‘means that
each employee’s name will be posted according to seniority
and each employee will be asked to work in sequence of his
posting.’’ (G.C. Exh. 2, p. 2.) Employee Larry Lauber filed
a grievance on November 11, 1989, because the other sundry
clerk, Leonard Mitchell, had been called in twice in a row
for overtime work, contrary to the 1988 side agreement
which would have required assignments on a rotation basis
(G.C. Exh. 40). The Respondent denied the grievance on the
basis that its practice complied with the new contract. The
General Counsel does not dispute that this practice ‘‘might
have been consistent with the current contract’’ but argues
that the Company had reaffirmed its side agreement by a no-
tice entitled ‘‘Emergency Procedure for After Hours Prob-
lems’’ (G.C. Exh. 41). The procedure outlined is identical to
the 1988 side agreement requiring rotation between the two
sundry clerks. The record is not clear whether the notice
(G.C. Exh. 41) constitutes a reaffirmation of the side agree-
ment as urged by the General Counsel. The grievant had not
seen the document until it was shown to him by the union
steward after the filing of the grievance. And Lauber was un-
sure whether it was distributed to the employees or posted
in the plant (Tr. 491). Shutz testified that he had issued the
notice to the guards on May 9, 1989, and that he made a
mistake in doing so, because he ‘‘failed to take into consid-
eration the hours of the new contract and the opportunity
system’’ (Tr. 722). Shutz issued a memorandum on Septem-
ber 13, 1989, whose purpose was to make it clear to the
360 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
foremen that the terms of the collective-bargaining agreement
applied to the overtime for sundry clerks (R. Exh. 11, Tr.
722).
The Respondent’s explanation that the reissued side agree-
ment was a mistake and that the Company intended to com-
ply with the specific and detailed terms of the contract is
credible and plausible. Moreover, the Respondent’s strict ad-
herence to the unmistaken and clear terms of the contract can
hardly be construed as a refusal to bargain or a unilateral
change of its overtime policy. At most, the Respondent was
faced with two inconsistent agreements and decided to com-
ply with the subsequently negotiated collective-bargaining
agreement. Under these circumstances, I find that the Re-
spondent did not, as alleged, violate this allegation of the
complaint.
The Insurance Waiver. The General Counsel agreed to
‘‘respectfully bite the bullet’’ and agrees with the Respond-
ent that there is ‘‘no basis for an 8(a)(5) finding regarding
this allegation’’ which challenged the Company’s instructions
to its employees not to accept the collision damage waiver
insurance as a result of an agreement with Hertz, Inc. (G.C.
Br. p. 28, R. Br. p. 33–34). In agreement with the parties,
I find that this allegation should be dismissed.
The Time Restriction Concerning Union Business. Alleged
as a violation of Sections 8(a)(5) and (1) and 8(d) of the Act
is a portion of the Company’s interoffice memorandum of
September 28, 1987, entitled ‘‘Union Business.’’ The pur-
pose of the memorandum was to ‘‘serve as a reminder of the
rules regarding the conducting of Union business during
working hours’’ (G.C. Exh. 22). The memorandum is pri-
marily based on the provisions in the collective-bargaining
agreement, except for the contractual language limiting con-
ferences between employees and stewards to ‘‘a reasonable
time’’ during working hours (G.C. Exh. 2, art. XV, sec. 12).
This provision was limited by the interoffice memorandum
as follows (G.C. Exh. 22, par. 6):
All meetings will be kept to a minimum in duration.
No meeting should take more than 1/2 hour. If it will
take longer than this, it must be done in conjunction
with a break, lunch time, or prior to/after normal work-
ing hours. The time which these meetings may take be-
fore or after normal working hours will not be paid for
by the Company.
Shutz admitted that the Company issued this memorandum
without bargaining with the Union and explained that it was
prompted by a dramatic increase in the number of grievances
and the time expanded by the union committee in preparation
of the second- and third-step grievances (Tr. 723–726). Shutz
testified that the time limit was intended and used as a guide-
line (Tr. 726). Nevertheless, the Union filed a grievance, sug-
gesting that some grievances take a longer time to write up
than others and that it had resisted the 10-minute time limit
during contract negotiations in favor of a flexible standard
(Tr. 121–122, G.C. Exh. 23).
Although the Company may well have intended to fashion
a reasonable guide, an examination of the language in the
memorandum does not support such an interpretation. Should
a meeting for a reasonable time on a complicated matter last
longer than 30 minutes ‘‘it must be done in conjunction with
a break lunch time’’ or on the employee’s own time before
or after working hours. According to the clear language in
the memorandum which by its own terms describes the var-
ious paragraphs as ‘‘rules regarding the conducting of union
business,’’ the parties would not have the option to meet for
a ‘‘reasonable time’’ as agreed on in the contract. To that ex-
tent, the memorandum is an abrogation of the agreement. Ac-
cordingly, I agree with the General Counsel that the Re-
spondent attempted to accomplish unilaterally to change the
terms of the bargaining agreement in violation of Sections
8(a)(5) and (1) and 8(d) of the Act.
The Subcontracting of Maintenance Work. The next para-
graph in the complaint alleges that the Company’s action of
subcontracting lawn care and snow removal work without
bargaining with the Union violated Sections 8(a)(5) and (1)
and 8(d) of the Act. The record shows that on August 18,
1989, the Respondent notified the Union by letter as follows
(G.C. Exh. 25):
This letter will notify you of the Company’s intent
to have an outside service firm maintain the lawn care
and snow removal on Company premises.
Should you wish to discuss this matter, please ad-
vise.
Following discussions between the parties and without
reaching any agreement, the Company subcontracted the
work effective in the fall of 1989 (Tr. 128, 728). The Union
promptly filed a grievance, dated October 4, 1989 (G.C. Exh.
27). The record further shows that the work had always been
performed by unit employees on an overtime basis and that
the work was part of the job descriptions of the ‘‘truck driver
crane operator’’ and the ‘‘sweeper trucker’’ (G.C. Exh. 26,
Tr. 126, 729).
The Respondent relies on the criteria in Westinghouse
Electric Corp., 153 NLRB 443 (1965), that the Respondent
had subcontracted certain work in the past, the decision was
made solely for economic reasons, the subcontracting had no
detrimental result on the employees, and the Union had the
opportunity to bargain. To be sure, the Company had in the
past subcontracted work like moving heavy equipment, paint-
ing, and roofing, but usually only after agreement with the
Union. Furthermore, loss of overtime pay, if substantial, is
usually not regarded as de minimis. Cities Service Oil Co.,
158 NLRB 1204 (1966). Moreover, here the contract specifi-
cally provided as follows (G.C. Exh. 2, art. l):
No excluded employee shall do work in job classi-
fications for which rates of pay are established as here-
inafter provided, except for purposes of instruction, in
case of emergency, or experimental research and devel-
opment with bargaining unit assistance.
The contract establishes rates of pay for sweeper truckers
and truckdriver crane operators whose job description spe-
cifically includes ‘‘clears snow’’ and ‘‘[r]esponsible for snow
removal and lawn and garden care as directed,’’ respectively
(G.C. Exh. 2, p. 44; 26). To be sure this work did not con-
stitute their principal assignment but it clearly fell within the
scope of their work. ACF Industries, 234 NLRB 1063
(1978).
The record does not show, however, that the Respondent
was primarily motivated in its decision to subcontract by fo-
cusing on labor costs. Gray testified that one of the reasons
361CLARKSON INDUSTRIES
was (Tr. 128): ‘‘They told us that they did not want us
spreading chemicals and, by New York State, that certain
professional people had to do that.’’ Gray also stated that the
Company expressed concern about the bad working condi-
tions of the snowplow and other equipment (Tr. 127). Shutz
testified that he told the union representatives that the Com-
pany ‘‘had a problem with the equipment, that the vehicles
. . . were old, needed repair and that the recent DEC regula-
tions regarding the application of pesticides, fertilizers, that
type of thing, required a licensed applicator . . . .’’ (Tr.
729.) Shutz also explained that the Company found it dif-
ficult to manage the work load that it ‘‘was able to find peo-
ple to do it but not always at the right time. Any time the
lawn got too high, we couldn’t pull people out of the shop
during the week, we had people working overtime during the
normal work week in the evenings, we’d have to wait until
a Saturday.’’ (Tr. 279.)
An employer’s failure to bargain over its decision to sub-
contract maintenance work normally done by bargaining unit
employees violates Section 8(a)(5) of the Act. Fibreboard
Corp. v. NLRB, 379 U.S. 203 (1964). This is so because the
loss of overtime work is considered a mandatory subject of
bargaining. In a related case, involving relocation of unit
work Dubuque Packing Co., 303 NLRB 386 (1991), the
Board overruled Otis Elevator Co., 269 NLRB 891 (1984),
and devised a test for determining whether the employer’s
decision is a mandatory subject of bargaining. One of the im-
portant aspects of the tests is an employer’s ability to show
that labor costs were not a factor in the decision. In this case,
the record shows, on the one hand, that the subcontracted
work was not the principal assignments of the affected unit
employees, the decision was made for a number of reasons
the least of which was to reduce labor costs, and the em-
ployer has subcontracted in the past, albeit with the consent
of the Union. On the other hand, the unit employees would
lose a certain amount of overtime, the work was expressly
recognized as a part of the unit, and the Respondent did not
make a change in the scope and direction of the enterprise.
In short, the issue boils down to the Respondent’s replace-
ment of work by unit employees with the same work per-
formed by an independent contractor. Under these cir-
cumstances, I find the Employer should have bargained with
the Union. Its failure to do so violated Sections 8(a)(5) and
(1) and 8(d) of the Act.
The Grievance Settlement. A decision on the issue whether
the Company violated Section 8(a)(5) and (1) of the Act in-
volving the grievance of Wes Osborne, an employee, is a
close question. On September 25, 1989, the Union filed a
grievance, stating ‘‘Brother Osborne was not asked to work
overtime on 9–23–89’’ (R. Exh. 3). The grievance was de-
nied at the third step because the work, consisting of moving
a machine out of a paint booth, was properly performed by
Joe Sgroi, a painter’s helper. The Union’s position was that
Osborne, a sweeper, had always performed that work and
should have been called on this occasion.
During two grievance meetings in October 1989 in the
presence of Richard Shutz, Richard Gozigian, Linda Becker,
and the union committee, the parties discussed a settlement
of the grievance. The parties reached a binding agreement,
according to James Gray, during the meeting on October 23,
1989, amid contentions that Osborne should have been called
because he had always done the moving work on the one
hand and, on the other, that Sgroi’s job description as a
painter’s helper included that work and that he had done so
in the past. Gray testified as follows (Tr. 142–143):
Because I made a proposal to the company that, look
it, let’s settle the grievance. I think Joe Sgroi can say
he’s never, never moved one of them. If he comes in
and says he never moved one of them, why don’t you
just pay Wes Osborne, get the grievance out of the
way. If he says it the other way, we’ll drop it, no prob-
lem whatsoever. It was okayed.
In support of his testimony, the General Counsel points to
Gray’s written notes (G.C. Exh. 30). They reflect the follow-
ing statement, ‘‘if Joey says yes, Wes would not be paid, if
no he will Ok.’’
Andrew Williams similarly recalls that Shutz accepted
Gray’s proposal that ‘‘if Joe would come in and say that he
never moved a 791 unit out of the lab, they would pay.’’ (Tr.
375.)
The testimony of the management officials does not reveal
that an agreement had been reached, although they testified
that the Union had made a proposal to which they agreed.
Shutz testified: ‘‘My response in particular, my own personal
response was that we’ll bring him in, but that’s how it was
left. We’ll bring him in and we’ll go from there’’ (Tr. 734).
Gozigian testified that: ‘‘We agreed to let him come in and
asked the questions we wanted to ask of him’’ (Tr. 769). Ac-
cording to Becker, Shutz responded to the Union’s request
to ask Sgroi the question as follows: ‘‘He said okay, we’d
bring him in, you know, we’d let them ask the questions if
they wanted to’’ (Tr. 816–817).
Sgroi was brought in and promptly supported the Union’s
position that he had never moved the equipment. However,
his statement did not resolve the issue. According to the
Company, his response was considered but it did not con-
vince management that the grievance had merit.
I agree with the Respondent that the incident was an hon-
est misunderstanding. It was plausible for the Union to as-
sume that the Company had accepted both of the Union’s
proposals, that is the suggestion to have Sgroi appear at the
next meeting and also the idea that the parties would be
bound by his response. The Company’s version is equally
convincing that it merely agreed to the Union’s offer to hear
and consider Sgroi’s response. In expressing their assent to
the Union’s proposal, the management representatives may
simply have overlooked the impact of the suggestion. In any
case, the record does not show that there was a meeting of
the minds between the parties and an agreement to be bound
by statement at the meeting. I therefore dismiss this allega-
tion of the complaint.
The Information Request. The final change in the com-
plaint alleges that the Respondent has unlawfully delayed
and refused to furnish the Union with the timecards of cer-
tain employees.
The Union made several requests for certain timecards. In
connection with a grievance filed to protest the suspension
or discharge of Harold Starring, a unit employee, the Union
made a written request, dated August 23, 1989, requesting
among other items the timecards of the employee (Tr. 147–
148, G.C. Exh. 32). According to Gray’s testimony, the
Company failed to produce the requested material (Tr. 150–
362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
151). By memorandum of September 7, 1989, the Union re-
quested also the timecards for two coworkers (G.C. Exh. 35).
By memorandum of September 21, 1989, the Union referred
to the request for information and asked for an extension of
time, inter alia (G.C. Exh. 33):
As we have asked for 6 or 7 pieces of evidence and
were refused all of them we feel we are not qualified
to make a final disposition of said evidence. We would
also like to ask for an extension on our right to either
arbitrate or accept said grievances.
On September 26, 1989, the Company replied as follows
(G.C. Exh. 34):
The Contract allows for 15 working days to respond
to the Company’s third step grievance final answer. I
believe that this should be sufficient time for you to
make your decision. The Company’s final decision was
given to you on September 20, 1989. This would give
you until October 11, 1989 to advise the Company of
your decision.
If you wish to make any specific requests for further
information, I will consider them. These requests must
be specific in nature and must include an explanation
of why the information requested is pertinent to the
grievance.
The Respondent did not produce the timecards by October
11, 1989. The controversy ended with a settlement of the
grievance and the Respondent’s decision to reduce the em-
ployee’s discharge to a warning (Tr. 299).
The second information controversy arose as a result of
the Union’s grievance dated August 28, 1989, about the re-
fusal of the Company to grant leave to several union officials
to attend a meeting (G.C. Exh. 36). The Union made a writ-
ten request for the timecards for all welders the week of Au-
gust 21–25 (Tr. 158, 300). The purpose was to probe the
Company’s explanation for refusing to grant the leave of ab-
sence, namely, that the employees were too busy with their
work assignments. The Union wanted to show with the aid
of the timecards that the employees ‘‘were doing next
month’s work’’ (Tr. 159, 301). The Respondent refused the
request by memorandum of August 28, 1989 (G.C. Exh. 37):
On Monday, August 28, 1989, you requested the
welder’s timecards for August 21–25, 1989. These are
company records and I don’t consider them pertinent to
Jim Gray’s grievance for discrimination of union offi-
cers by the Company. All of the union employees are
treated equally under the terms of the contract and the
plant rules and regulations. As you are aware, the
whole shop worked a great deal of overtime last week
(Monday, August 21 thru Thursday, August 24) to meet
the required shipments for August. Also, all of the em-
ployees are required to be here on a daily basis to do
their jobs except as allowed by the contract. This type
of a meeting is not specifically allowed under the con-
tract.
I therefore must deny your request to see the re-
quested timecards.
Another request for timecards was made in November
1989. The Union requested all timecards for all unit employ-
ees as of January 1, 1988, in order to examine the Compa-
ny’s overtime practice involving several grievances (Tr. 160,
303). The Union conceded that this request would have en-
tailed thousands of timecards. Gray testified that initially he
received a verbal response denying the request (Tr. 160–
161). However, by letter of January 26, 1990, the Company
informed the Union that its request for all timecards from
January 1, 1988, to November 30, 1989, is granted because
it ‘‘has determined that the Union is entitled to this informa-
tion’’ (G.C. Exh. 18).
The General Counsel argues that the Union had made sev-
eral requests for relevant information which the Respondent
denied. The ‘‘Respondent’s belated compliance with the re-
quests does not preclude a finding’’ of violation (G.C. Br.
p. 36). The Respondent argues that the Union made these re-
quests as a ploy to harass the Company, and that the Com-
pany has offered since January 26, 1990, to make these time-
cards available to the Union subject to reasonable administra-
tive considerations (R. Br. p. 49).
The record is clear that the Union’s request for timecards
was initially denied. It also cannot be gainsaid that the time-
cards were relevant in all three instances, including the
Union’s grievance challenging the Company’s decision to
discipline an employee, for willfully abusing ‘‘company
property by wasting production hours’’ and other misconduct
(G.C. Exh. 31). The Union wanted to probe the Company’s
claim that it took a long time for two other employees to rec-
tify the mistakes made by Starring. It therefore requested the
timecards of the three employees showing the work per-
formed on the particular assignment (Tr. 148). The request
to see the timecards for the welders was obviously relevant
to test the Company’s claim that they could not be given
leave to attend a union meeting. The relevancy of all time-
cards was not contested by the Company.
It is well settled that as ‘‘part of the section 8(a)(5) duty
to bargain, an employer has a duty to furnish all information
requested by a union that is necessary to the union in order
for it to fulfill its obligation as representative of bargaining
unit employees. NLRB v. Acme Industrial Co., 385 U.S. 432,
435–36 (1967) . . . .’’ NLRB v. Illinois-American Water
Co., 933 F.2d 1368, 1377 (7th Cir. 1991), enfg. 296 NLRB
715 (1989). The relevancy is a ‘‘discovery-type’’ standard
which is sufficiently broad to encompass the timecard re-
quest by the Union. Although part of the request became
moot and the other aspect of the request was finally granted,
it is clear that the Respondent initially denied the requests in
violation of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Union is the collective-bargaining representative of
Respondent’s employees in the following unit:
All production and maintenance employees employed
by Respondent at its Syracuse, New York facility, in-
cluding all plant clerical employees, shipping and re-
ceiving clerks, truck drivers and inspectors; but exclud-
363CLARKSON INDUSTRIES
ing all office clerical employees, production control em-
ployees, timekeepers, research building employees,
stores records employees, guards, professional employ-
ees, and all supervisors as defined in the Act.
4. By issuing a written warning to Eli Snyder because of
his union activities, the Respondent violated Section 8(a)(3)
and (1) of the Act.
5. By unilaterally, without prior notice to or in consulta-
tion with the Union, implementing new work rules and regu-
lations for unit employees, the Respondent violated Section
8(a)(5) and (1) of the Act.
6. By unilaterally, without affording the Union the right to
bargain, changing its policy of paying unit employees for
certain overtime, the Respondent violated Section 8(a)(5) and
(1) of the Act.
7. By unilaterally, and without consultation with the
Union, restricting the time allotted to union officials for
union business, the Respondent violated Sections 8(a)(5) and
(1) and 8(d) of the Act.
8. By unilaterally, and without prior consultation with the
Union, subcontracting snow removal and yard maintenance
work, the Respondent violated Sections 8(a)(5) and (1) and
8(d) of the Act.
9. By failing and refusing to furnish the Union with cer-
tain timecards or information relevant to the Union’s per-
formance of its function as the exclusive bargaining rep-
resentative of the unit, the Respondent violated Section
8(a)(5) and (1) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, it is recommended that the Respondent
cease and desist therefrom and take affirmative action de-
signed to effectuate the policies of the Act.
Having found that the Respondent unlawfully discrimi-
nated against its employee Eli Snyder by issuing a written
warning, the Respondent will be ordered to rescind its action
by removing the warning from the personnel files of the em-
ployee and to notify him to that effect in writing. Having
found that the Respondent has unilaterally and without bar-
gaining with the Union issued plant rules to its employees,
changed its policy on overtime, restricted the time for union
officials to transact union business, and subcontracted main-
tenance work, the Respondent will be ordered to rescind its
unilateral actions and to bargain with the Union as the col-
lective-bargaining representative of the employees in the unit
described above. Having further found that the Respondent
violated the Act by refusing to furnish certain information to
the Union relevant to its function as the exclusive collective-
bargaining representative, the Respondent will be ordered to
cease and desist from any future violations in this regard. An
order requiring the Respondent to furnish the information is
not necessary because the Respondent has belatedly agreed
to make the necessary disclosures.
[Recommended Order omitted from publication.]