Frank Chervan, Inc.

National Labor Relations Board - Board Decisions

Apr 28, 1987

283 N.L.R.B. 752 (N.L.R.B. 1987)

752 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Frank Chervan, Inc. and Amalgamated Clothing and
Textile Workers Union, AFL-CIO, CLC. Case
5-CA-17608
28 April. 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND CRACRAFT
On 27 October 1986 Administrative Law Judge
Claude R. Wolfe issued the attached decision. The
Respondent filed exceptions and a supporting
brief, I and the General Counsel filed cross-excep-
tions 'and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board 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
conclusions2 and to 'adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Frank Cher-
van, Inc., Bedford, Virginia, its officers, agents,
successors, and assigns, shall take, the action set
forth in the Order.
' The Respondent has requested oral argument . The request is denied
as the record, exceptions , and briefs adequately present the issues and the
positions of the parties.
2 In adopting the judge 's conclusion that the Respondent violated Sec.
8(a)(5) of the Act by refusing to provide to the Charging Party the re-
quested information , we rely solely on his finding that the information
was relevant and necessary to the Charging Party's duties as the collec-
tive-bargaining representative in grievance proceedings and that the
Union's request was not burdensome. We find it unnecessary to reach the
first and second issues noted by the judge; specifically , whether the
matter in dispute was settled and, if settled , whether the contractual
"conference" requirements were complied with. The parties have agreed
on a method for dispute resolution that is embodied in the collective-bar-
gaining agreement. We note that the parties have waived contractual
time limitations for arbitration . An arbitrator can better decide these
issues thereby avoiding any bifurcation of the arbitration hearing, should
the Union decide to pursue the grievance after receiving the information.
Steven E. Nail, Esq., for the General Counsel.
Edward G. Kemp, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
CLAUDE R. WOLFE, Administrative Law Judge. This
case was litigated before me at Lynchburg, Virginia, on
12 August 1986 pursuant to charges filed by Amalgamat-
ed Clothing and Textile Workers Union, AFL-CIO,
CLC (the Union) on 4 November 1985 and complaint
issued 31 December 1985. The complaint, as amended at
hearing, alleges that Frank Chervan, 'Inc. (Respondent)
has violated Section 8(a)(5) and (1) of the National
Labor Relations Act (the Act) by refusing to furnish the
Union with information necessary and relevant to its per-
formance as employee representative.
Respondent denies the commission of an unfair labor
practice and contends the grievance was disposed of by
binding settlement between the parties during a second
step meeting; the information requested is not necessary
and relevant; and it would be overly burdensome to
supply the information. Respondent agrees in its posttrial
brief, and I find, that the refusal-to-furnish information
allegation should not be deferred to contractual griev-
ance-arbitration procedures, United Technologies Corp.,
274 NLRB 504 (1985).
On the record before me, and after considering the
able posttrial briefs of the parties, I make the following
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Respondent is engaged in the manufacture and nonre-
tail distribution of wooden furniture and related products
at its Bedford, Virginia facility. During the 12 months
preceding the issuance of the complaint, a representative
period, Respondent sold and shipped more than $50,000
worth of its products, goods, and materials directly from
its Bedford, Virginia facility to points located outside the
State of Virginia. Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Relevant Facts
There is little dispute about the relevant facts. It is the
conclusions to be drawn therefrom that are at issue. Re-
spondent and the Union have had an amicable bargaining
relationship for some 25 years. The latest collective-bar-
gaining agreement between them is effective from 1
April 1985 to 1 April 1988, and contains a grievance pro-
cedure reading, in pertinent part, as follows:
Section 2. An alleged grievance, in order to re-
ceive consideration, must be based on some claimed
violation of the rights of employees as established
by this Agreement and must be presented within
five (5) working days of the occurrence of the act
which gives rise thereto.
Section 3. Should grievance arise, an earnest
effort shall be made to settle them immediately by
the following procedure, each enumerated method
to be exhausted before resorting to the next enumer-
ated method.
(a) By conference between the employee in-
volved and his immediate supervisor and a Union
representative if his presence is requested. The su-
283 NLRB No. 125
FRANK CHERVAN, INC.
pervisor shall give a definite answer within twenty-
four (24) hours. In the event the agreement is not
reached, the aggrieved employee shall then notify
the Chairman of the Union Committee, and if the
Chairman deems the complaint justified, the em-
ployee shall reduce it to writing and it shall be pre-
sented to the Company within five (5) working days
after the occurrence giving rise to the grievance; it
being understood that if the written, grievance is not
submitted to the Company within said five (5) day
period, the grievance will be barred and will be
deemed completely disposed of from the standpoint
of the Company, the Union, and the employee in-
volved.
(b) Within three (3) working days after the writ-
ten grievance is submitted, by conference between
the employee involved, the Chairman of the Com-
mittee, the Plant Superintendent, steward and fore-
man.
(c) Within ten (10) working days thereafter (or
such time as shall be mutually acceptable, by con-
ference between the Grievance Committee, a repre-
sentative of the International Union, the Plant Man-
ager, steward, foreman and the employee involved.
(d) If any grievance cannot be settled by, the par-
ties as set forth above, it may be referred to arbitra-
tion at the request of the Union, and in this event,
the Union, within fifteen (15) days after the final de-
cision of the Company upon the grievance has been
made known, shall notify the Company in writing
of its desire to have the matter arbitrated. If the
grievance is not appealed to arbitration within such
fifteen day period, it shall be deemed to have been
satisfactorily settled. If the grievance is appealed to
arbitration . . . . [t]he decision of the arbitrator
shall be final and binding on both parties... .
Respondent assigned Chester Hickman to perform
some rush work on Louis XV chair legs on 19 Septem-
ber 1985,1 asserting that Hickman was superior to others
at performing that work. Gerald Saunders had more se-
niority than Hickman, but was placed on laid-off status
for 19 September because there was no work available
for him. Saunders filed a grievance on 23 September pro-
testing that Hickman,was allowed to work in his place
even though Hickman had less seniority and skill. Both
employees are members of the bargaining unit covered
by the collective-bargaining agreement.2 The provision
of the agreement relevant to the grievance reads, in per-
tinent part, as follows:
ARTICLE VII
Seniority
Section 1 . Seniority, on a departmental basis shall
prevail at all times.
i All dates are 1985.
2 The bargaining unit is
All production and maintenance employees, but excluding salaried
and clerical employees, guards, watchmen, assistant foremen, fore-
men and supervisors.
753
Section 5.
(a) In effecting promotions, transfers, demotions,
layoffs and recalls, the following, factors will be
given full consideration:
(i) , Knowledge, skill and efficiency.
(ii) Physical fitness for the job.
(iii) Length of service.
When factors (i) and (ii) are relatively equal,
factor (iii) shall govern. The Company shall deter-
mine the qualifications under factors (i) and (ii), but
any employee who considers himself aggrieved as a
result of the Company's determination shall have
the right to file a grievance.
Robert McKinney, plant superintendent, and Lester
Miller, supervisor of Hickman and Saunders, met with
Saunders and union steward Charles Cooper on 30 Sep-
tember to discuss the grievance. The meeting was re-
quested by Cooper. McKinney is the only one of the
four who testified. His uncontroverted recitation of what
occurred at the meeting is credited. He explained Re-
spondent's reasons for selecting Hickman rather than
Saunders to do the work. Cooper remarked that he had
surmised that was the case and that was what he had
told Saunders. Saunders stated that was good enough for
him and, as far as he was concerned, that ended the
matter. No one mentioned that Vernon Craig, the
Union's local president and chairman of the grievance
committee was not present. Craig is normally notified by
management of conferences to be held at the second step
of the grievance procedure.3 He was not notified of the
30 September meeting bythe Company or Charles
Cooper.
Subsequent to the 30 September meeting, Philip Pope,
the Union's international representative, requested a
third-step grievance meeting ' with Respondent on the
written grievance of 23 September that he had received
in the mail. When Pope received the grievance, he called
Craig and asked if the grievance had been settled. Craig
told him there had been no meeting with him at the
second step of the grievance procedure and the griev-
ance had not been settled. Pope credibly testified that it
is the practice to take up the grievance at the third step
when there is no second-step meeting because a failure to
meet at the second step is construed as an ,automatic
denial of the grievance. A meeting with Pope was sched-
uled and held on 16 October.
The 16 October meeting was attended by Pope, Craig,
Cooper, Saunders, Hickman, ' McKinney, Miller, and G.
Dennis Snell, Respondent's general manager
.
The meet-
ing opened. Snell said that he did not know why they
were meeting because, the Company thought the griev-
ance was settled. Pope took the position that it had not
been settled, and testified before me that Craig and Saun-
ders did not agree at the meeting that it had been settled.
According to McKinney, there was no statement from
Saunders or Cooper that the grievance had not been set-
s There, is no evidence the grievance was first discussed with the em-
ployees' immediate supervisor as the first step provides.
754 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tied. Noting that Pope also testified that the company
representatives were the only ones at the meeting who
said anything about ' the grievance being settled, I con-
clude that " Saunders and Cooper neither agreed nor dis-
agreed at this meeting that the grievance had been set-
tled . In the course of the meeting , Pope requested certain
information from Respondent , which he deemed relevant
to the grievance . Snell told him to put his request in
writing.
The following day, 17 October , Pope submitted the
following written request to Snell: -
A discussion was held on the above mentioned
grievance on October 16 , 1985. During our discus-
sion the Company stated Chester Hickman was
more qualified to do the work but did not deny the
grievants ability was relatively equal.
The-Company claimed it needed Chester to run 'a
special order, 15857 Spindle and Wheel. During.our
discussion I asked how many rejects Chester and
the grievant each had accumulated while running
the 15857 job. I also asked what other work Chester
performed on September 19, 1985 . The Company
could not immediately answer these questions, ap-
parently because records were not readily accessi-
ble. Therefore, the Union requests the following in-
formation which is relevant to the Union investiga-
tion of this grievance. -
1. Copies of Company records indicating the
number of pieces run on the 15857 Spindle and
Wheel job for each employee in the Sanding De-
partment for the, preceding twelve months, the
performance level of each employee running this
job and the total number of rejects for each em-
ployee on this job.
2. Copies of Chester Hickman's production sheets or
any other records indicating the jobs which Ches-
ter Hickman performed on September 18, 1985.
On 22 October, Snell replied by letter reading:
This will respond to your letter of 10-17-85 and
comments relating to your conclusion of our 10-16-
85 meeting on the above mentioned grievance.
You were informed that the grievant , Mr. Saun-
ders did not work on a specific job on the day in
question as he did- not possess the skill level re-
quired to do the job without having to have the job
"reworked" or deemed not useable.
The company's position and reasons for taking
the action .it did was fully explained to the grievant,
Mr. Saunders, and the steward , Mr. Cooper in a
meeting held with our Area Manager , Mr. McKin-
ney on 9-30-85. All parties agreed at this meeting
that the matter was understood and closed.
The company still considers the matter closed
and sees no need to forward information as request-
ed in your letter of 10-17-85.,
Pope wrote Snell another letter on 5 November reading
as follows:
Upon further investigation of the above men-'
tioned grievance the Union has found that this
grievance was `'`not closed" by the Union at any
meeting between the parties . The fact that the
grievant understood management's position and rea-
soning on September ' 30, 1985, ,in no way closed the
grievance.
Further, after a grievance is put in writing, it be-
comes the property of- the Union and a meeting is
supposed to be held which includes the chairman of
the grievance committee . In the Gerald Saunders
grievance, the chairman was not included ' in any
meeting until I discussed this grievance , with the
Company on October 10, 1985 . Accordingly, Mr.
McKinney's meeting was not a formal step of the
grievance and should be disregarded as a formal
-hearing:
Previously the Union requested certain informa-
tion from the Company pertaining to this grievance
(letter dated 10-17-85). 'I am renewing the request
and further intend to ask the National Labor Rela-
tions Board ' [for] ' enforcement of the Union's re-
quest.
The Union requests an extention of time to file
for arbitration on this grievance pending the Na-
tional Labor Relations Board's investigation of this
alleged violation of Section 8-A-5.
If the Company denies an extension ' of time,
please consider this a notice ' of intent to arbitrate
this grievance.
Respondent has not furnished the requested informa-
tion, and the parties have agreed to an extension of time
to file for arbitration until such time as the instant case is
resolved.
B. Contentions and Conclusions
The complaint, as amended by the 'General Counsel's
motion to strike a portion thereof at hearing, which was
granted, alleges Respondent has improperly refused- to
furnish the following information:
(1) Copies of Company records indicating the
number of pieces run on the 15857 Spindle and
Wheel job for each employee in the Sanding De-
partment for the preceding twelve months, the per-
formance level of each employee running this job
and the total number of rejects for each employee
on this job.
(2) Copies, , of Chester Hickman's production
sheets or any other records indicating' the jobs
which Chester Hickman performed on September
19, 1985.
The issues are (1 ) whether the grievance was settled at
the meeting of Cooper and Saunders with McKinney, (2)
whether that settlement is binding on the Union, and,
therefore , excuses Respondent from furnishing informa-
tion relevant to the grievance, (3) whether the informa-
tion requested is relevant to the Union 's performance as
exclusive collective-bargaining representative of Re-
spondent's employees , and (4) whether it is overly bur-
densome ' on Respondent to furnish the information
sought.
FRANK CHERVAN, INC. 755
I am persuaded the participants in the 30 September
meeting believed the grievance was settled and finally
disposed of. This is not, however, diapositive of the issue.
Article V, section 3 provides that an earnest effort shall
be made to settle grievances at each step, of the griev-
ance procedure, but also specifically provides that a
complaint shall be reduced to writing by the aggrieved
employee if the "Chairman' of the Union Committee"
deems the, complaint justified, and further, provides that
settlement efforts after a written grievance is-submitted
shall be made at a "conference between the employee in-
volved, the Chairman of the Committee, the Plant Su-
perintendent, steward .and foreman." This is a mandatory
provision. Vernon Craig was the "Chairman of the Com-
mittee." He received no notification of the grievance or
the meeting and was not present at the 30 September
meeting. The meeting was therefore not a `,`conference
between the employee involved, the Chairman of the
Committee, the Plant Superintendent, steward and fore-
man" as article V, section 3(b) of the contract requires.
There is no evidence the Union waived the necessity of
the "Chairman of the Committeet's]" presence at such a
conference, nor is there any ' contractual provision pro-
viding for such a waiver, or any showing Cooper was
acting as the "Chairman." Indeed, if he was there would
then have been no steward present. For these reasons I
conclude that the 30 September meeting was not a "con-
ference" as contemplated by, article V, section 3(b) of the
collective-bargaining agreement , and the 30 September
"settlement" is not,binding on the Union. Accordingly, I
further find that, notwithstanding the agreement of
Cooper and Saunders that the matter was settled, Pope
acted properly in pursuing the matter at the next, step of
the procedure described in article V, section 3(c).
It is well settled that the employer is required to fur-
nish the exclusive bargaining representative of its em-
ployees with information relevant and necessary to the
Union's performance of its duties in discharging its role
as employee representative in grievance proceedings.4
The contract plainly provides at article VII, section 5
that "Knowledge, skill and efficiency" is a controlling
factor in determining layoffs, and an employee who con-
siders himself aggrieved by the Respondent' s ' determina-
tion of that factor has the right to file a grievance. Saun-
ders was the senior employee, and he was laid off on 19
September while Hickman performed work' that Saun-
ders claims he is capable of performing. The Union is en-
titled to information in Respondent's control that is rele-
vant to the grievance. Without the relevant information
the Union is severely disabled in its efforts to evaluate
and process Saunders' grievance. The information must
be produced if there is only a probability it is relevant
and useful to the Union in processing and assessing the
merit of the grievance.5 The question is "whether the in-
formation . . . is helpful in evaluating the merits of the
*ievance and the propriety of pursuing the grievance to
'nitration."s The answer, I believe, is that it is. Pope
g., Postal Service, 276 NLRB 1282, 1285 (1985), and cases cited
v. Pfizer, Inc., 763 F. 2d 887 (7th Cir. 1985), enfg. 268 NLRB
WL Molding Co., 272 NLRB 1239 (1984).
i Technologies Corp., 274 NLRB 504, 506 ( 1985).
persuasively explained that the information sought re-
garding all employee performance on work of the type
in question was necessary for an evaluation of the rela-
tive qualifications of Saunders and Hickman with respect
to each and with respect to all employees performing
that work. That the relative past performance of Saun-
ders and Hickman is relevant- to the issue of relative
qualifications to do the same work on 19 September is
obvious. Moreover, I agree with Pope that inasmuch as
the contract refers to "relatively equal" knowledge, skill,
and efficiency, the average performance of all employees
working on the particular job provides a measuring point
from which to ascertain whether, and by how much, the
performance of Saunders and Hickman deviated from
that norm. If there be but' a slight variance from the av-
erage by both, it might be argued that their performance
and this knowledge, skill , and efficiency, is relatively
equal. On the other hand, a much better than average
performance by one would overshadow an average or
less than average performance by the other and tend to
show differences in knowledge, skill, and efficiency, as
would a barely average performance contrasted against a
far below average one. There are other, possible vari-
ations , but it suffices to note that these examples illus-
trate the usefulness of the information sought to the
grievance evaluation process. The Union is therefore en,-
titled to the records showing the information regarding
the 15857 Spindle and Wheel job that it requested in its
17 October letter. There is some indication in .the record
that reject ,records are not kept and therefore cannot be
produced. Whether or not reject records exist is, howev-
er, a matter best left to the compliance stage of these
proceedings. As to paragraph 2 of the Union' s request
letter, what Hickman produced on 19 September is rele-
vant to the question of whether his allegedly special
abilities were really needed and for how long on that
date. Hickman's special qualifications are the primary as-
serted reason given for Saunders layoff on 19 September.
If Hickman did not in ' fact perform the work denied
Saunders on a relative qualifications basis, the informa-
tion is probably dispositive of the grievance. If Hickman
did perform the work, but only for a few minutes, or
hours,, the layoff of Saunders for,the entire day is placed
in question. There are, as always in these situations,
other variations that may be conjured up`to support or
defeat the grievance, but, whatever the ultimate determi-
nation of the grievance on its merits, the records reflect-
ing Hickman's performance on 19 September are clearly
relevant.
Respondent's affirmative defense that it is overly bur-
densome to require the production of the above records
is not impressive. Respondent maintains weekly comput-
er printouts of individual employee production according
to Pope, who is credited in the absence of persuasive
countervailing evidence, and the production of the 19
September work record of Hickman would seem to re-
quire little effort by Respondent. Apart from its bare
contention, Respondent adduced no reasonable modicum
of supporting evidence for any theory of excessive
burden, and therefore has not met its burden of proving
it was faced with an unreasonable burden if it complied
756 DECISIONS OF THE NATIONAL "LABOR RELATIONS BOARD
with the request. Accordingly, the defense that to re-
quire the production of the requested data would be
overly burdensome is denied.
CONCLUSIONS OF LAW
1. 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 mean-
ing of Section 2(5) of the Act.
3. By refusing to furnish the Union with information
requested in connection with the grievance of Gerald
Saunders, Respondent has engaged in unfair labor prac-
tices affecting commerce within , the meaning of Section
8,(a)(5) and (1) and Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER
The Respondent, Frank Chervan, Inc., Bedford, Vir-
ginia, its officers, agents, successors ,-and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Amalgamated Clothing
and Textile Workers Union, AFL-CIO, CLC, as the ex-
clusive' bargaining representative of the employees in the
following bargaining unit by refusing to furnish it with
information it requests that is relevant and reasonably
necessary to the processing of employee grievances:
All production and maintenance employees, but ex-
cluding salaried and clerical employees, guards,
watchmen, assistant foremen, foremen and supervi-
sors.
(b) In any like or related manner interfering with, re-
straining, 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) Immediately furnish the Union with the informa-
tion it requested by letter of 17 October 1985 in connec-
tion with the grievance of Gerald Saunders.
7 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 pur-
poses.
(b) Post at its facility in Bedford, Virginia, copies of
the,attached notice marked "Appendix."s Copies of the
notice, on forms, provided by the Regional Director for
Region 5, after being signed by the Respondent's author-
ized representative, -shall be -posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, 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.9
8 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 Nation-
al 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."'
9 The circumstances of this case do not warrant the inclusion of a visi-
tatorial clause authonzing the Board , for compliance purposes, to obtain
discovery from Respondent under the Federal Rules of Civil Procedure
under the supervision of any United States court of appeals enforcing this
Order.
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 refuse to bargain with Amalgamated
Clothing and Textile Workers Union, AFL-CIO, CLC,
as the exclusive bargaining representative of our employ-
ees in an appropriate unit , by refusing, on request, to fur-
nish it ' with information relevant and reasonably neces-
sary to the processing of unit employee grievances.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the National
Labor Relations Act.
WE WILL immediately furnish the Union with the_ in-
formation it requested by letter of 17 October 1985 in
connection with the grievance of Gerald Saunders.
FRANK CHERVAN, INC.