Harco Laboratories

National Labor Relations Board - Board Decisions

Aug 31, 1984

271 N.L.R.B. 1397 (N.L.R.B. 1984)

HARCO LABORATORIES
Harco Laboratories, Inc. and United Electrical,
Radio & Machine Workers of America (UE),
and its Local 299. Case 39-CA-1661
31 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 30 March 1984 Administrative Law Judge
James F. Morton issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the Union filed an answering 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,I and
conclusions 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, Harco Lab-
oratories, Inc., Branford, Connecticut, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
I Member Hunter agrees with the judge and with his colleagues that
the names and addresses of bargaining unit employees are presumptively
relevant. He recognizes, however, that this presumption may be rebutted
by, inter alia, evidence that a Union has alternative means of obtaining
the information. In the instant case, Member Hunter finds that the Re-
spondent failed to rebut the presumption, for the reasons stated by the
judge.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The
issue is whether Harco Laboratories, Inc. (Respondent)
violated Section 8(a)(1) and (5) of the National Labor
Relations Act (the Act), by having refused to honor the
requests of United Electrical, Radio & Machine Workers
of America (UE) and its Local 299 (the Union) for the
addresses of employees of Respondent represented by the
Union.
I heard the case in Hartford, Connecticut, on October
21, 1983.
On the entire record, including my observation of the
demeanor of the witnesses and after due consideration of
the briefs filed by the General Counsel and Respondent,
I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
The pleadings establish and I therefore find that the
operations of Respondent, a Connecticut corporation en-
gaged in manufacturing thermocouples and thermocou-
ple harnesses, meet the Board's standard for nonretail en-
terprises. Respondent's answer admits that the Union is a
labor organization as defined in the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
There is little factual dispute in this case. The Union
was certified on November 11, 1979, as the exclusive col-
lective-bargaining representative of the approximately 80
production and maintenance employees of Respondent at
its plant in Branford, Connecticut. It was not until more
than 1-1/2 years later that the Union and Respondent
agreed on their first contract. That agreement was
reached on August 24, 1981, at the end of a strike that
lasted over 2-1/2 months. (Respondent alludes to alleged
misconduct during that strike as a basis for its refusal to
honor the Union's request. The evidence it offered is dis-
cussed later.) The first agreement was for a I-year term.
Upon its expiration in August 1982, the Respondent and
the Union entered into a 3-year renewal contract in
effect now. There was no evidence of any strike in 1982.
The current contract does not have any union-security
provisions.
One of the matters that may have given rise to the
Union's request for addresses relates to the distribution
of the U.E. News. Copies of that paper, up until about
1982, were shipped in bulk to UE locals to be passed out
to employees they represent. The Union's stewards in the
case before me distributed copies of the U.E. News
either by passing them out to Respondent's employees in
Respondent's parking lot or by placing a stack of those
papers at a location inside Respondent's plant for use of
the employees. The UE had notified its locals that it had
computerized its facilities for distributing the U.E. News
so that the paper could be mailed directly to the homes
of employees represented by UE locals.
There appears to be another matter related to the
Union's making its request. In late 1982, Respondent no-
tified the Union that it intended to set up a second shift
to operate for 6 months. After discussion, agreement was
reached as to hours and premium pay for employees on
that second shift. Respondent however rejected the
union's request that the Union have a steward assigned
to that shift with whom Respondent must deal. Respond-
ent and the Union finally agreed to hold that matter in
abeyance for a 30-day evaluation period. The second
shift started operation with five employees on November
1, 1982. Shortly thereafter, the Union tried to reach one
of the five second-shift employees at her home in order
to discuss the developments on the second shift. It was
unsuccessful. The Union had an old authorization card
from that employee with an address thereon but she had
moved.
271 NLRB No. 220
1397
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Union's Request and the Replies Thereto
On January 10, 1983, the Union orally asked Respond-
ent for the address of its unit employees. Respondent
wrote the Union on January 17, 1983, that the request
was denied on the ground that the Union gave "no ade-
quate reason" for the addresses and as the Union has
"various alternative means" to get the addresses.
On January 25, 1983, the Union submitted a written
request to Respondent for the addresses of bargaining
unit employees. In that letter, the Union cited (1) its
need to "keep in touch" with the nonmembers in the
unit, who number about 35, (2) the fact that U.E. News
can now be mailed automatically to employees' homes,
and (3) the frequency with which it distributed bulletins
to employees employed by Respondent and by other
firms.
On January 27, 1983, Respondent answered that it saw
no need to furnish the addresses as (a) the Union has a
bulletin board in the plant and (b) in-plant representa-
tives of the Union are capable of talking to the non-
members.
For some reason, the Union reiterated its request on
March 21, 1983, and again on May 3, 1983. In the May 3
letter, the Union noted that Respondent has hired many
new employees whose home addresses are unknown to
the Union. The record discloses a 30-percent turnover of
employees in a 6-month period. Respondent answered on
May 9 by referring the Union to its earlier letter.
C. Respondent's Reasons
As to Respondent's initial comments in denying the
Union's request, the evidence discloses that the Union
has a bulletin board in the plant on which it can post ma-
terial subject to Respondent's approval; that approval
was withheld in only one instance and then was granted
when the Union made the change Respondent wanted.
Stewards are free to meet with employees in the plant on
nonworktime. Union representatives can obtain permis-
sion to enter Respondent's plant to meet employees at
lunchtime. The Union's representative testified that he
has obtained such permission but only after extensive in-
quiries. The Union's representative can use the employee
parking lot to talk with employees or to distribute union
literature there. The parking lot is in the rear of the plant
and is used by all unit employees-90 percent of whom
park there and the remainder are dropped off there.
At the hearing before me, Respondent offered another
reason for its refusal to furnish the addresses. It ex-
plained that it had not previously given the Union that
other reason because the Union had "never asked for the
reasons" Respondent relied on for not having honored
the Union's request. Respondent's personnel manager tes-
tified that Respondent declined the Union's request for
addresses of unit employees because there was a "very
cold" relationship between two groups of unit employ-
ees, i.e., those who picketed during the strike in the
summer of 1981 and those who crossed the picket lines
then. Respondent traced the coldness to reports Re-
spondent received during the strike that cars of non-
strikers were mysteriously damaged at night while
parked in the driveways of their homes. To counter that
reason, the General Counsel adduced evidence that the
Union's present chief steward had been one of the em-
ployees who worked during the strike and also that one
of the employees whose car had been damaged had had
cordial discussions at home with union representatives on
several occasions since the strike.
D. Analysis
The Board has held that the names and addresses of
unit employees, like wage data, are presumptively rele-
vant to a union's role as bargaining agent.' Such infor-
mation is "so basically related to the proper performance
of [a union's] statutory duties [that] any special showing
of specific relevance would be superfluous." 2 The Su-
preme court has noted, in a collateral case, that requiring
disclosure of employee addresses to a union involved in
an election promotes the objectives of the Act "by en-
couraging an informed employee electorate and by al-
lowing unions the right of access to employees that man-
agement already possesses." 3 Respondent has observed
in its brief that the Board in 1974, held, in essence, that
the decision by the Supreme Court is not dispositive and
that an exclusive bargaining representative is not a for-
tiori entitled to a list of the names and addresses of unit
employees without exploration of the relevancy and ne-
cessity for that information. 4 The Board there ordered
the employer to furnish the names and addresses as the
General Counsel had shown that the information request-
ed was both relevant and necessary to the union there in
the performance of its statutory obligations and that ade-
quate alternative means of communications with unit em-
ployees were not available. The Board, in that case, did
not articulate any basis for not following the rationale of
Wyman-Gordon, nor did it comment on the Second Cir-
cuit's holding, noted above at footnote 2. As has been
observed, the trend of Board law has been to place less
and less emphasis on a showing of alternate means of
communication and more on the duty to furnish relevant
information. 5 In this last-cited case, the administrative
law judge traced the case law developments in this area
beginning with, Standard Oil of California, 166 NLRB
343 (1967), enfd. 399 F.2d 639 (9th Cir. 1968). He con-
cluded that the Board's holding in Autoprod, Inc., 223
NLRB 773 (1973), "appears to state flatly that a union is
entitled to the addresses of unit employees, whether or
not those addresses could be obtained by other means
and a fortiori whether or not the union might be able to
disseminate information to unit employees by other
means than mailing." The administrative law judge then
went on to characterize that approach as apparently "the
mainstream of Board law." As noted below, that obser-
vation has proved out. At times the Board has consid-
ered the factor of accessibility. Thus, in Georgetown Asso-
ciates, supra at fn. 1, the Board noted parenthetically that
I Georgetown Holiday Inn, 235 NLRB 485 (1978).
2 Prudential Insurance Co. v. NLRB, 412 F.2d 77, 84 (2d Cir. 1969). Cf.
United Aircraft Corp., 181 NLRB 892 (1970), enfd. 434 F.2d 1198 (2d Cir.
1970).
3 NLRB v. Wyman-Gordon Co., 394 U.S. 759, 767 (1969).
4 Magma Cooper Co., 208 NLRB 329 (1974).
' Armstrong World Industries, 254 NLRB 1239, 1244 (1981).
1398
HARCO LABORATORIES
the union there could not readily reach the 50-unit em-
ployees because of their high turnover, the absence of
union-security provisions, and because the stewards there
were generally restricted to their own work areas. In the
case before me, there is also a high employee turnover
and an absence of a union-security provision. Further,
one of the matters that gave rise to the union's request
for the addresses was its inability to place a steward on
the night shift.
I have already noted that little effort has been made to
set out the rationale on which Respondent would have
me dismiss the complaint. Perhaps the consideration un-
derlying the approach urged by Respondent is the one
forthrightly stated by Circuit Judge Friendly in his dis-
senting opinion in Prudential, supra. There, he observed
that the court engaged in self-deception by accepting the
view that the union there wanted the names and address-
es of unit employees in order to poll them about contract
proposals. He believed its real purpose was to engage in
active solicitation of union membership and he stated
three grounds on which he based that belief. Incidental-
ly, none of those grounds are pertinent to the cases
before me. Respondent does not suggest that the Union's
real purpose in seeking the addresses is organizational. 6
The specific facts of this case establish clearly that its
goal is representational. In these circumstances and con-
sistent with the current Board approach,7 I find that the
information sought is relevant and necessary and that
Respondent has not rebutted the presumption as it of-
fered no evidence that it would be unduly burdensome
to compile and furnish such a list.8 Respondent has not
even addressed that last consideration.
Respondent's alternate contention is that its concern
for the safety of those employees who worked during
the 1981 strike outweighs the Union's need for addresses.
That is patently an afterthought. It never mentioned that
concern to the Union in its letters in which it had ex-
plained its position. Further, its attempt to account for
that oversight made no sense to me. In any event, over 2
years had transpired from the time of the strike to the
time it expressed its concern. I do not see how it could
show a "clear and present danger of violence and harass-
ment" sufficient to excuse its refusal to supply the ad-
dresses.9 The time lapse, if anything, seems to be healing
old sores as evidence by the fact that the Union's chief
steward is an individual who had crossed the picket line
in 1981 and another employee, who also crossed that
picket line, has friendly discussions in her home about
the Union with one of its representatives.
At best, from Respondent's standpoint, the Union's
chief steward told an employee who did not want to join
the Union that she would be sorry. That could be an im-
plied threat and it could be a statement implying that
employees must stand together or lose. In context of this
case, it is an isolated comment.
6 Respondent offered evidence that an employee was recently told by
the Union's chief steward that she would "be sorry" when she refused to
join the Union. That matter came up in a different context and is dis-
cussed separately below.
Gehnrich & Gehnrich, 258 NLRB 528, 535 (1981).
8 Jecla Mining Co., 248 NLRB 1341, 1343 (1980).
g Shell Oil Co. v. NLRB, 457 F.2d 615 (1972).
I find that Respondent's first contention lacks legal
merit and further lacks sufficient factual support to justi-
fy its refusal to furnish the addresses of unit employees.
As to Respondent's alternate contention, I find it pretex-
tual. '0
CONCLUSIONS OF LAW
i. 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 failing and refusing on and after January 10,
1983, to furnish to the Union the names and addresses of
all bargaining unit employees, Respondent violated Sec-
tion 8(a)(1) and (5) of the Act.
4. The unfair labor practices described above affect
commerce within the meaning of 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't
ORDER
The Respondent, Harco Laboratories, Inc., Branford,
Connecticut, its officers, agents, successors, and assigns,
shall
i. Cease and desist from
(a) Refusing to bargain collectively with United Elec-
trical, Radio & Machine Workers of Amerca (UE) and
its Local 299 by refusing to furnish the Union with a list
of the names and addresses of the employees employed
by Respondent in the unit represented by the Union at
Respondent's plant in Branford, Connecticut.
(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 acts necessary to ef-
fectuate the policies of the Act.
(a) Furnish the Union with a list of the names and ad-
dresses of the employees in the unit represented by the
Union at Respondent's plant in Branford Connecticut.
(b) Post at its Branford, Connecticut plant copies of
the attached notice marked "Appendix." t 2 Copies of the
notice, on forms provided by the Officer-in-Charge for
Subregion 39, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive 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
'O Pearl Bookbinding Co., 213 NLRB 532, 536 (1974).
": 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.
12 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
1399
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the notices are not altered, defaced, or covered
byany 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
names and addresses of all the employees it represents in
our Branford plant.
WE WILL not in any like or related manner interfere
with, restrain, or coerce any of our employees in the ex-
ercise of the rights guaranteed them by Section 7 of the
Act.
WE WILL furnish the above-named Union with a list of
the names and addresses of the employees in the unit it
represents at our Branford plant.
HARCO LABORATORIES, INC.
WE WILL NOT refuse to bargain in good faith with
United Electrical, Radio & Machine Workers (UE) and
its Local 299 by refusing to honor its request for the
1400