Kennametal Inc.

National Labor Relations Board - Board Decisions

Jun 26, 2012

358 N.L.R.B. 553 (N.L.R.B. 2012)

553
KENNAMETAL, INC.

358 NLRB No. 68
Kennametal, Inc. and United Steelworkers, Local
5518, affiliated with United Steelworkers of
America, AFL–CIO, CLC. Cases 01–CA–
046293 and 01–CA–046294
June 26, 2012
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
On April 12, 2011, Administrative Law Judge Arthur
J. Amchan issued the attached decision. The Respondent
filed exceptions and a supporting brief. The Acting Gen-
eral Counsel filed a brief in support of the judge’s deci-
sion and an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.1
The Board has considered the decision and the record
in light of the exceptions2 and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.3
I. INTRODUCTION
The judge found that the Respondent, Kennametal,
Inc., violated Section 8(a)(5) and (1) of the Act by uni-
laterally implementing a safety checklist requirement,
failing to furnish information about the safety checklist
requirement in response to the July 16, 2010 request by
the Union,4 and unilaterally eliminating the use of pro-
gressive discipline for safety violations. We reverse the
judge in part, finding that the Respondent’s implementa-
tion of the safety checklist requirement did not violate
the Act because the Union waived its right to bargain
over the Respondent’s implementation of safety policies.
We affirm, for the reasons stated below, the judge’s find-

1 Member Hayes is recused and did not participate in the considera-
tion of this matter.
2 No exceptions were filed to the judge’s finding that the Respondent
violated Sec. 8(a)(5) and (1) of the Act by failing to respond to the
Union’s information requests sent on May 26 and June 2, 2010, or to
his finding that the Respondent unreasonably delayed furnishing the
information requested by the Union on April 5, 2010. Also, no excep-
tions were filed to the judge’s rulings allowing the Acting General
Counsel to amend the complaint, except insofar as the Respondent
argues that the allegation relating to the 2009 safety corrective action
policy (discussed herein) is barred by Sec. 10(b) of the Act.
3 We shall modify the judge’s recommended Order to conform to our
findings and the Board’s standard remedial language. We shall substi-
tute a new notice to conform to the Order as modified.
4 United Steelworkers, Local 5518, affiliated with United Steelwork-
ers of America, AFL–CIO, CLC.
ings of violations based on the information request and
on the elimination of progressive discipline.5
II. FACTS
The Respondent, a large international metalworking
company, operates a facility in Lyndonville, Vermont.
Since 1957, production and maintenance employees at
the Lyndonville facility have been covered by collective-
bargaining agreements between the Union and the Re-
spondent or its predecessors.
A. The Safety Checklist Requirement
Article 16 of the parties’ collective-bargaining agree-
ment contains two sections directly addressing the Re-
spondent’s authority to implement safety rules:

16.01 The Employer and the Union will cooperate in
the continuing objective to eliminate accidents and
health hazards. The Employer shall continue to make
reasonable provisions for the safety and health of its
employees at the Plant during the hours of their em-
ployment.
. . . .
16.05 The Employer and the Union agree to cooperate
in the maintenance of the Employer’s safety program
and in the enforcement of such reasonable safety and
health rules as may from time to time be established by
the Employer.

The parties had no consistent past practice with respect to
negotiating over safety rules; sometimes they negotiated,
and sometimes the Respondent (or its predecessor) imple-
mented rules unilaterally without objection from the Union.
In February 2010, the Respondent began implementing
a new corporatewide safety initiative, called Manage-
ment-Based Safety (MBS), at Lyndonville. In July 2010,
the Respondent, pursuant to MBS, unilaterally imple-
mented a new safety procedure that required each em-
ployee to review a laminated safety checklist pertaining
to the machinery with which the employee would be
working that day and, thereafter, to memorialize that
review of the checklist by initialing items on a white-
board installed next to the checklist.6 If the employee
agreed with a specific item on the laminated checklist,
the employee was required to initial the corresponding

5 We adopt the judge’s finding, for the reasons stated in his decision,
that the Respondent violated Sec. 8(a)(5) and (1) by unilaterally exclud-
ing the Union from participating in accident investigations.
6 Each checklist was customized for a specific piece of machinery,
with items ranging from objective requirements, such as wearing safety
glasses and checking whether the safety mechanisms on the machine
work, to more subjective statements, such as whether the employee has
been properly trained and whether the tasks cause the employee pain.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 554
item on the whiteboard in green. If the employee did not
agree with a particular item, the employee was required
to initial in red and submit an explanation on an alert
form so that his or her supervisor could correct the situa-
tion. The entire process took 5 to 10 minutes each day.
At the end of the day, the Respondent erased the white-
boards without recording the initials, but retained the
completed alert forms.
After the Respondent implemented this new procedure,
employees were concerned that initialing the whiteboard
could be used as evidence against them in discipline. At
least one employee, John Eastman, was threatened with
discipline after he repeatedly refused to initial the white-
board.
B. The July 16 Information Request
On July 16, 2010, Carl Turner, a staff representative
for the Union’s parent international union, sent an email
to the Respondent that read, in relevant part:

The USW [the international union] was just informed
by Local 5518 of a new safety procedure that the com-
pany has implemented and I am requesting bargaining
concerning this procedure and the effects it will have
on the bargaining unit employees.
Please send me any and all information that you have
pertaining to this by the end of next week.

The Respondent never responded to the Union’s request.
C. Discipline for Safety Violations
From at least 2003 until February 2010, no employee
at the Lyndonville facility received more than a warning
for violating a safety rule, and no employee was termi-
nated for any reason. By past practice, discipline for
violating any rule was progressive and followed the fol-
lowing steps: oral warning, written warning one, written
warning two, written reprimand, and then suspension or
termination.
Occasionally, the Respondent would accelerate the
discipline by skipping one step.
In February 2010, the same month that the Respondent
began implementing MBS, the Respondent disciplined
David Jenotte with a 1-day suspension for violating a
safety rule; this discipline skipped the first four steps in
the Respondent’s progressive discipline practice, which
was unprecedented. Thereafter, the Respondent contin-
ued to impose discipline inconsistent with its past prac-
tice. In September 2010, the Respondent suspended
Doug Noyes for 1 day following a safety rule violation
that resulted in his receiving a hand laceration, and, in
January 2011, the Respondent terminated Kenneth Wil-
kins for a safety rule violation that resulted in his receiv-
ing severe hand injuries.
MBS did not specifically provide for a change to pro-
gressive discipline for safety violations. In February
2009, however, the Respondent created a new corporate-
wide safety disciplinary policy known as the 2009 safety
corrective action policy. That policy provides that a se-
rious safety violation may be punishable by a 3-day sus-
pension for the first offense and termination for the se-
cond offense and is therefore inconsistent with the Re-
spondent’s past practice at Lyndonville.
The Respondent never gave the Union direct notice of
the 2009 safety corrective action policy, but rather posted
the new policy on a bulletin board outside the human
resources office at the Lyndonville facility in February
2009. At the time of the posting, however, the pertinent
section describing the new levels of discipline was not
included. At the hearing, there was conflicting testimony
over whether the pertinent section was added to the post-
ing afterwards. Two management witnesses testified that
they saw some union members, whom they did not iden-
tify, read the posting in September 2009; no members or
agents of the Union, however, testified to seeing it then,
and the judge found that the managers’ testimony did not
establish that the disputed section was included at the
time. Amy Morissette, the Respondent’s safety coordi-
nator, testified that she thought any policy posted on the
human resources bulletin board was effective after 48
hours pursuant to article 19 of the parties’ collective-
bargaining agreement, which provides, “Shop rules es-
tablished by the Employer will be posted on the bulletin
boards forty-eight (48) hours before becoming effective.”
Richard Gammell, the former union president at the
Lyndonville facility from 1973 to 1985 and 1988 to
2003, testified that the Respondent always notified the
Union directly of any rule change in addition to posting.
The judge discredited Morissette and found in any event
that the collective-bargaining agreement required that
actual notice of a change be given to the Union.
III. DISCUSSION
A. The Safety Checklist Requirement
The judge found that the safety checklist requirement
was a mandatory subject of bargaining and, therefore,
that the Respondent violated Section 8(a)(5) and (1) by
implementing it without giving the Union an opportunity
to bargain. Without addressing article 16 of the collec-
tive-bargaining agreement, the judge rejected the Re-
spondent’s argument that the Union waived bargaining
over the safety checklist requirement.
We agree with the judge that the safety checklist re-
quirement was a material, substantial, and significant
KENNAMETAL, INC. 555
change to the terms and conditions of employment.
Nevertheless, we find, contrary to the judge, that article
16 of the collective-bargaining agreement is a clear and
unmistakable waiver of the Union’s right to bargain over
the decision to implement the safety checklist require-
ment. Section 16.01 provides that the Respondent “shall
continue to make reasonable provisions for the safety and
health of its employees.” Section 16.05 refers to “such
reasonable safety and health rules as may from time to
time be established by the Employer.” Read together,
these two provisions are sufficiently specific to constitute
a waiver of the Union’s right to bargain over safety rules.
See United Technologies Corp., 287 NLRB 198, 198
(1987), enfd. 884 F.2d 1569 (2d Cir. 1989) (finding clear
and unmistakable waiver of the union’s right to bargain
over a change to progressive discipline for absenteeism
because the collective-bargaining agreement provided
that the employer had “the right to make and apply rules
and regulations for production, discipline, efficiency, and
safety”). We further find the safety checklist require-
ment to be a safety rule with the apparent goal of im-
proving safety awareness before employees operate dan-
gerous equipment. Accordingly, we reverse the judge
and find that the Respondent did not violate Section
8(a)(5) and (1) by unilaterally implementing the safety
checklist requirement.
B. The July 16 Information Request
The judge found that, because the safety checklist re-
quirement was a mandatory subject of bargaining, the
information the Union requested in the July 16 email was
presumptively relevant. Because the Respondent offered
no valid excuse or explanation for its failure to respond,
the judge found that the Respondent violated Section
8(a)(5) and (1) by failing to provide the Union with the
requested information. We agree with the judge that the
July 16 request sought information about the safety
checklist requirement.7 We further agree with the judge
that the Respondent violated the Act by not responding
to the request, but we do so for the following reasons.
Ordinarily, information concerning unit employees’
terms and conditions of employment “is presumptively
relevant and must be provided on request.” Iron Workers

7 The Respondent argues that the request sought information about
MBS generally—not simply about the checklist requirement—and that,
because MBS as a whole was not a mandatory subject of bargaining,
the Respondent was not required to respond to the request. We disa-
gree. The Union’s request was made only about 2 weeks after the
safety checklist requirement was implemented and sought information
about “a new safety procedure.” In this context, it is clear that the
Union was referring to the checklist requirement. In any event, an
employer is not free to simply ignore an ambiguous or overbroad in-
formation request. See Keauhou Beach Hotel, 298 NLRB 702, 702
(1990).
Local 207 (Steel Erecting Contractors), 319 NLRB 87,
90–91 (1995). When a union waives its right to bargain
over a change to a term or condition of employment,
however, it no longer is entitled to information requested
for that purpose. See American Stores Packing Co., 277
NLRB 1656, 1658–1659 (1986); Emery Industries, Inc.,
268 NLRB 824, 824–825 (1984). Instead, the union is
entitled to the information only if the union gives the
employer actual or constructive notice of “another legit-
imate basis for requesting the information.” Emery, su-
pra at 825. In this case, the Union fulfilled that require-
ment by expressly requesting the information, not only
for decisional bargaining, but for bargaining over “the
effects [the safety procedure] will have on the bargaining
unit employees.” It is settled that a union’s waiver of the
right to bargaining over a change does not waive its right
to bargain over the effects of that change. See, e.g.,
Good Samaritan Hospital, 335 NLRB 901, 902 (2001).
For that reason, we find that the Respondent violated
Section 8(a)(5) and (1) by not responding to the Union’s
July 16 information request.
C. Discipline for Safety Violations
The judge found that the Respondent also violated
Section 8(a)(5) and (1) by what amounted to the unilat-
eral elimination of its past practice of progressive disci-
pline, a mandatory subject of bargaining over which the
Union had not waived bargaining. Furthermore, and
contrary to the Respondent’s contention, the judge found
that Section 10(b) did not bar the allegation. He found
that the Respondent’s 2009 safety corrective action poli-
cy was not in fact implemented until sometime after July
2010—the month the unfair labor practice charge was
filed—and that the Union did not receive clear and une-
quivocal notice of the change until January 2011. As
stated above, the judge discredited testimony that the
entire policy was posted in September 2009, and he
found in any event that posting was insufficient under the
parties’ agreement to give notice to the Union.
We agree with the judge that the Respondent unilater-
ally eliminated progressive discipline for safety viola-
tions and that the Union did not waive bargaining. Alt-
hough article 16 authorizes the Respondent to issue rules
defining unsafe conduct, nothing in article 16 or else-
where in the collective-bargaining agreement permits the
Respondent to unilaterally change the disciplinary con-
sequences for employees of engaging in that conduct.
See Windstream Corp., 355 NLRB 406 (2010), incorpo-
rating by reference 352 NLRB 44, 49–51 (2008).
We also agree that Section 10(b) does not bar finding a
violation, but we do not rely on the judge’s findings that
the policy was not implemented until after July 2010 or
that the complete policy was not posted in September
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 556
2009. Instead, we find that, even assuming the full poli-
cy was posted and implemented in September 2009, the
Union did not receive notice of the change at that time.
For an allegation to be barred by Section 10(b), the re-
spondent must prove that the charging party had clear
and unequivocal notice of the violation more than 6
months before the charge was filed. Allied Production
Workers Local 12 (Northern Engraving Corp.), 331
NLRB 1, 2 (2000). Notice can be actual or constructive.
St. Barnabas Medical Center, 343 NLRB 1125, 1126–
1127 (2004). In the instant case, the Respondent failed
to prove that the Union was on notice of the Respond-
ent’s unilateral elimination of progressive discipline
more than 6 months before the Union filed the charge on
July 30, 2010.
First, the only possible evidence of actual notice is that
some union members may have seen the 2009 safety
corrective action policy posted outside the human re-
sources office. The knowledge of individual union
members is not imputed to the union unless those mem-
bers had a role in bargaining or other factual circum-
stances warrant imputing their knowledge. See Brimar
Corp., 334 NLRB 1035, 1035 fn. 1 (2001); Nursing Cen-
ter at Vineland, 318 NLRB 337, 339 (1995). Here, some
unidentified union members may have seen the 2009
safety corrective action policy posted, but the Respond-
ent failed to prove that those members were involved in
bargaining or that any other circumstances would war-
rant imputing their knowledge to the Union.
Second, the Respondent failed to prove that the posting
of the 2009 safety corrective action policy on one bulle-
tin board outside the human resources office provided
constructive notice to the Union. Article 19 of the par-
ties’ collective-bargaining agreement shows that the par-
ties contemplated that such notices would be posted on
more than one bulletin board. Moreover, it is clear that
the Respondent had not previously relied on postings
alone to alert the Union to rule changes; according to
uncontroverted testimony, the long-established practice
was that, regardless of any posting, the Respondent
would notify the Union directly of any rule change.
Third, the Respondent failed to prove any other facts
that would establish constructive notice. None of the
Respondent’s disciplinary actions for safety violations
were inconsistent with progressive discipline until Je-
notte’s suspension in February 2010. Thus, there was no
reason for the Union to suspect the change until February
2010 at the earliest, less than 6 months before the filing
of the charge.
Because the allegation is not barred by Section 10(b),
we conclude, as the judge did, that the Respondent vio-
lated Section 8(a)(5) and (1) by unilaterally eliminating
progressive discipline for safety violations.
AMENDED CONCLUSIONS OF LAW
Delete the judge’s Conclusion of Law 1 and renumber
the subsequent paragraphs.
ORDER
The National Labor Relations Board orders that the
Respondent, Kennametal, Inc., Lyndonville, Vermont, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Changing the terms and conditions of employment
of its unit employees, including, but not limited to, uni-
laterally implementing a new discipline policy for safety
violations or more strictly enforcing its discipline policy
for safety violations, without first notifying the Union
and giving it an opportunity to bargain.
(b) Unilaterally implementing its management based
safety program in a manner that excludes union partici-
pation in accident investigations.
(c) Failing or refusing to bargain with the Union by
failing and refusing to furnish it, or by unreasonably de-
laying in furnishing it, with requested information that is
necessary and relevant to its role as the exclusive collec-
tive-bargaining representative of production and mainte-
nance employees at its Lyndonville, Vermont facility.
(d) 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) Within 14 days from the date of this Order, offer
Kenneth Wilkins full reinstatement to his former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Make Kenneth Wilkins and Doug Noyes whole for
any loss of earnings and other benefits suffered as a re-
sult of the disciplinary actions taken against them in the
manner set forth in the remedy section of the judge’s
decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to Kenneth Wilkins’ unlawful
discharge, or other discipline imposed related to his Oc-
tober 27, 2010 accident, and Doug Noyes’ unlawful sus-
pension and within 3 days thereafter notify both of them
in writing that this has been done and that these adverse
personnel actions will not be used against them in any
way.
(d) At the request of the Union, rescind any unilateral
changes to its disciplinary policy for safety violations
and/or the enforcement of that policy.
KENNAMETAL, INC. 557
(e) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
employees in the following bargaining unit:

All production and maintenance employees employed
at the Respondent’s Lyndonville, Vermont plant, and
excluding all supervisors as defined under the National
Labor Relations Act.

(f) Furnish to the Union in a timely manner the infor-
mation that it requested on May 26, June 2, and July 16,
2010, if not previously provided.
(g) Reinstitute an accident investigation process that
provides the Union the opportunity to meaningfully par-
ticipate in such investigations, consistent with the par-
ties’ 2005–2010 collective-bargaining agreement.
(h) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(i) Within 14 days after service by the Region, post at
its Lyndonville, Vermont facility copies of the attached
notice marked “Appendix.”8 Copies of the notice, on
forms provided by the Regional Director for Region 1,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since February 2, 2010.

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
(j) Within 21 days after service by the Region, file
with the Regional Director for Region 1 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT implement changes in your wages,
hours, or terms and conditions of employment, including
but not limited to our disciplinary policies for safety vio-
lations, without providing adequate notice to United
Steelworkers Local 5518 and offering the Union an op-
portunity to bargain over any proposed changes.
WE WILL NOT exclude the Union from participating in
the investigation of accidents.
WE WILL NOT fail or refuse to bargain with the Union
by failing and refusing to furnish it, or by unreasonably
delaying in furnishing it, with requested information that
is necessary and relevant to its role as the exclusive col-
lective-bargaining representative of our production and
maintenance employees at Lyndonville, Vermont.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Kenneth Wilkins full reinstatement to his
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Kenneth Wilkins and Doug Noyes
whole for any loss of earnings and other benefits suffered
as a result of the disciplinary actions taken against them,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 558
less any net interim earnings, plus interest compounded
daily.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful termination of Kenneth Wilkins, or other discipline
relating to Kenneth Wilkins’ October 27, 2010 accident
and the unlawful suspension of Doug Noyes, and WE
WILL, within 3 days thereafter, notify them in writing that
this has been done and that the discharge and suspension
will not be used against them in any way.
WE WILL, at the request of the Union, rescind any uni-
lateral changes in our disciplinary policy for safety viola-
tions and/or the enforcement of that policy.
WE WILL reinstitute an accident investigation proce-
dure that provides the Union with the opportunity to
meaningfully participate in such investigations as set
forth in our 2005–2010 collective-bargaining agreement.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of employees in the following bargaining unit:

All production and maintenance employees employed
at our Lyndonville, Vermont plant, and excluding all
supervisors as defined under the National Labor Rela-
tions Act.

WE WILL furnish to the Union in a timely manner the
information that it requested on May 26, June 2, and July
16, 2010, if not previously provided.

KENNAMETAL, INC.

Jo Anne Howlett, Esq., for the General Counsel.
Charles P. Roberts III, Esq. ( Constangy, Brooks & Smith), of
Winston Salem, North Carolina, for the Respondent.
Carl Turner, Staff Representative, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Greenfield, Massachusetts, on February 8–10,
2011. United Steelworkers Local 5518 filed the charges in this
case on July 30, 2010. The General Counsel issued the com-
plaint on December 28, 2010.
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following

1 Tr. 42, L. 17: “players” should be “employers.” Tr. 525, L. 18:
“minimum” should be “recognized.”
FINDINGS OF FACT
I. JURISDICTION
Respondent, Kennametal, Inc., is a large international com-
pany with 26 facilities in the United States and 48 facilities
worldwide, including the facility in this case, which is located
in Lyndonville, Vermont.2 One of the products produced at
Lyndonville is taps. A tap is a tool used to cut an internal
screw thread. At the Lyndonville plant, Respondent derives
gross revenue in excess of $500,000 and sells and ships goods
valued in excess of $50,000 to points outside of Vermont. Re-
spondent admits, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Union, the United Steelworkers of Ameri-
ca, Local 5518, is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The Union has represented all production and maintenance
employees at Respondent’s Lyndonville, Vermont facility since
1957. Respondent Kennametal acquired this facility in approx-
imately 1997. There have a series of collective-bargaining
agreements between the owners of this facility and the Union.
The agreement governing this case between Kennametal and
Local 5518 was in effect from October 1, 2005, through Octo-
ber 2, 2010. Apparently, the parties currently operate under a
subsequent agreement, which is not in this record, or are still
negotiating a successor agreement.
The primary issue in this case is whether Respondent violat-
ed Section 8(a)(5) and (1) of the Act in refusing to bargain
about the implementation of its corporatewide “Management
Based Safety Program” (MBS) at the Lyndonville facility.
Respondent announced implementation of the program on Feb-
ruary 2, 2010. The Union requested that Respondent bargain
over the implementation of MBS the next day. Respondent
declined to so, asserting that it was not a mandatory subject of
bargaining.
At the commencement of this hearing, the General Counsel
moved to amend the remedy sought for this alleged violation to
require rescission of the reprimand and 1-day suspension issued
to employee Doug Noyes on September 2, 2010, and the sus-
pension and subsequent termination of employee Kenneth Wil-
kins on January 11, 2011. I granted this amendment mid-way
through the hearing. The amendment pertains to another major
issue in this case, the relationship, if any, of MBS to Respond-
ent’s Procedure for Corrective Actions for Safety Violations
and Work Instructions for Corrective Actions. The General
Counsel and the Charging Party contend that these instructions,
used in disciplining Noyes and Wilkins, are part and parcel of
MBS, or at least sufficiently related to MBS to require negotia-
tion with the Union about the implementation of MBS.
Alternatively, the General Counsel contends, as stated in its
posthearing motion to further amend the complaint, that Re-
spondent violated Section 8(a)(5) in implementing the Proce-

2 This case initially also concerned alleged unfair labor practices at
Respondent’s Greenfield, Massachusetts facility, but those were re-
solved.
KENNAMETAL, INC. 559
dure for Corrective Action in September 2009. The General
Counsel may amend the complaint at any point in the proceed-
ings, including upon the filing of his post hearing brief. Re-
gardless of whether the complaint is amended or not, whether
or not consideration of the Procedure for Corrective Action is
appropriate depends upon whether it is closely related to mat-
ters contained in the complaint and was fully and fairly litigat-
ed, Williams Pipeline, 315 NLRB 630 (1994). I find that there
is a close relationship between the allegations of the complaint
and whether Respondent violated Section 8(a)(5) and (1) in
implementing the Procedure for Correct Action. Moreover, I
find that the issue was fully and fairly litigated and grant the
General Counsel’s motion to amend the complaint.
Respondent contends there is no relationship between MBS
and the Procedure and Work Instructions for Corrective Ac-
tions.3 Nevertheless (GC Exh. 42), particularly paragraph 7.4
and in discussing “People Factors” on the second to last page,
establishes that counseling or disciplining employees is one of
the ways Kennametal intends to improve its safety record
through MBS (also see Tr. 572–76).
Additionally, MBS cut the Union out of the process of acci-
dent investigation, contrary to the provisions of the collective-
bargaining agreement. By changing this process, Respondent
diminished the possibility that factors such as production quo-
tas would be considered in assessing the cause of an accident.
Therefore, MBS in making it more probable that an injured
employee would be found at fault for an industrial accident had
a clear relationship to disciplinary measures taken as the result
of an accident. Thus, I reject Respondent’s argument that MBS

3 Respondent contends that consideration of its disciplinary policy
regarding safety violations is barred by Sec. 10(b) of the Act. I reject
this contention. The 6-month limitations period prescribed by Sec.
10(b) begins to run only when a party has clear and unequivocal notice
of a violation of the Act. See, e.g., Leach Corp., 312 NLRB 990, 991
(1993), enfd. 54 F.3d 802 (D.C. Cir. 1995). The requisite notice may
be actual or constructive. In determining whether a party was on con-
structive notice, the inquiry is whether that party should have become
aware of a violation in the exercise of reasonable diligence. See, e.g.,
Moeller Bros. Body Shop, 306 NLRB 191, 192–193 (1992). Construc-
tive notice will not be found where a “delay in filing is a consequence
of conflicting signals or otherwise ambiguous conduct.” A & L Under-
ground, 302 NLRB 467, 469 (1991). Respondent did not provide the
Union clear and unequivocal notice of this policy until January 2011.
Moreover, there is no credible evidence that Respondent implement-
ed the disciplinary policy reflected in its Work Instructions for Correc-
tive Action until July 2010 at the earliest when Eric Huttenlocker as-
sumed day-to-day responsibility for labor relations at the Lydonville
facility. Respondent at trial relied largely on Amy Morissette, its Envi-
ronmental, Health and Safety lead to establish that this disciplinary
policy was in force in 2009. However, this record establishes that
Morissette was “out of the loop” with regard to discipline policy, hu-
man resource matters and labor relations at all times material to this
case. She testified that she understood that a new disciplinary policy
was effective immediately after participating in a March 2009 confer-
ence call, but offered no explanation as to why nothing relevant to this
policy surfaced at the Lyndonville plant until June. Nor did Morissette
offer any explanation as to why Respondent’s then human resource
manager, Ginger Noyes, did not post anything about the disciplinary
scheme inherent in the new policy until September. As stated herein, I
discredit Morissette’s testimony regarding the September posting.
has nothing to do with Respondent’s discharge and discipline
policies.
The case also involves three allegations that Respondent vio-
lated Section 8(a)(5) in refusing or failing to provide infor-
mation requested by the Union and one instance in which Re-
spondent allegedly unreasonably delayed providing infor-
mation.
Respondent’s Procedure for Corrective Actions for
Safety Violations and Work Instructions for
Corrective Actions.
Lack of Sufficient Notice to the Union
In February 2009, Respondent’s global headquarters gener-
ated documents entitled “Procedure for Corrective Action for
Safety Violations,” and “Work Instructions for Corrective Ac-
tions” All or part of these documents appear in three different
exhibits (GC Exh. 16, GC Exh. 32; and R. Exh. 21). There are
differences in these exhibits, which may go to the heart of this
case. This is so because Respondent asserts that the Union had
notice of the contents of at least part of these documents by
virtue of their being posted on a bulletin board in 2009.
Sean Jewell, Respondent’s day-shift supervisor, testified that
in the late summer of 2009 he saw part of General Counsel’s
Exhibit 32 posted on a bulletin board by the human resources
office (Tr. 609–610). He testified that only part of the docu-
ment was posted. He stated, “I don’t believe this appendix A
was posted with the first three pages.” However, General
Counsel’s Exhibit 32, without appendix A is not a three page
document; it is five pages. It is on the fourth and fifth pages of
the document that Respondent states that any serious safety
violation may be grounds for a 3-day suspension and that a
second serious violation may be grounds for termination. Re-
spondent’s Exhibit 21 is likewise a sixth-page document on
which the paragraphs also appear on pages 4 and 5.
These statements regarding the imposition of discipline ap-
pear on the first page of General Counsel’s Exhibit 16. Based
on the testimony of Jewell, Union President Leon Garfield, and
Grievance Committee Chairman John Eastman, I find that Re-
spondent did not post those portions of the work instructions
pertaining to suspension and termination for safety violations
and that the Union did not receive any notice of this change in
disciplinary policy until January 2011.4 I would note that not a
single witness, including Amy Morissette (Tr. 416–417), testi-

4 Respondent claims to have applied this policy in September 2009
to employee Robert Gordon when he cut his finger. I do not credit this
testimony. Moreover, even if this were so, Respondent never told the
Union it was applying the decision tree in the work instructions to
Gordon. Indeed, it is in part because Respondent did not inform the
Union that it was applying the decision tree to Gordon that I discredit
its testimony in this regard.
Morissette’s testimony is also inconsistent with the Respondent’s is-
suance of a written warning 2 to Chad Tibbets on February 12, 2010,
GC Exh. 39. Tibbets’ failure to follow proper lockout/tagout proce-
dures is a serious violation pursuant to the Procedure for Corrective
Action and should have resulted in a 3-day suspension pursuant to the
work instructions. The failure to suspend Tibbets strongly suggests that
Respondent was not applying the new safety discipline policy until
September 2010 when it suspended Noyes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 560
fied to seeing a document posted that stated that a serious safety
violation would lead to 3-day suspension and that a second
such violation would result in an employee’s termination.5
I discredit the testimony of Amy Morissette, Respondent’s
environmental health and safety coordinator to the contrary.
Morissette testified that in July 2009, Ginger Noyes, then Re-
spondent’s human resources manager, posted the procedure for
corrective action but not the work instructions, which contains
the new discipline and discharge policy. Morissette testified
that she noticed in September that the work instructions were
not posted and emailed Noyes to post them as well. Morissette
then testified that she went back to the bulletin board several
days later and saw that the entire policy minus the decision tree
had been posted. There is no corroboration for the testimony
that anything other than three pages were ever posted and since
supervisor Jewell only saw three pages, I find that the Proce-
dure for Corrective Action was the only document ever posted
on the bulletin board.
I would also note that Respondent’s contention that it pro-
vided adequate notice of the change in disciplinary policy to the
Union is inconsistent with the essence of article 20 of the col-
lective-bargaining agreement. That article provides that “any
notice communication shall be conclusively deemed for all
purposes hereunder to be effective given if sent by certified or
registered mail, postage prepaid, addressed to the Union to:
United Steelworkers, 100 Medway Suite, #403 Milford, MA
01757-2923 and in the case of the Employer to: Kennametal
Inc., 378 Main Street, Lyndonville, VT 05851.”6 Moreover,
even if unit members were aware of the new disciplinary poli-
cy, their knowledge is not imputable to the Union, see Brimar
Corp., 334 NLRB 1035 fn. 1 (2001).
Finally, Morissette’s testified at Transcript 414 that so far as
Respondent was concerned, the new enhanced disciplinary
policy was already in effect when she went to look at the bulle-

5 Second-Shift Supervisor Tim Morissette’s response to his coun-
sel’s question as to whether he had seen all of R. Exh. 21, except for the
decision tree, was an equivocal, “I believe I’ve seen most of it, yes,” Tr.
600. Tim Morrisette’s testified he discussed the policy with unit em-
ployees sometime after the July plant shutdown, Tr. 601. According to
his wife, Amy Morissette, the critical parts of the document were not
posted until September, so he could not have discussed the suspen-
sion/termination policy with unit employees. Like Jewell, Morissette
did not testify that he saw the suspension/termination policy on the
bulletin board, which is another reason I conclude it was never posted.
6 Respondent suggests that it provided adequate notice pursuant to
art. 19, which states that “shop rules” established by the employer will
be posted on the bulletin boards 48 hours before becoming effective.
While the term “shop rules” is not defined in the collective bargaining
agreement, I conclude it does not include a policy which does not gov-
ern employee conduct, but which rather imposes new draconian conse-
quences for employee conduct. Moreover, art. 19 appears to contem-
plate posting of “shop rules” on a number of different bulletin boards.
There is no evidence that the Procedure and Work Instructions regard-
ing safety violations was posted on any bulletin board other than one
near the human resources office. There is at least one other bulletin
board, which is provided to the Union pursuant to art. 18 of the collec-
tive-bargaining agreement, GC Exh. 4 p. 29; Tr. 397. Thus, Respond-
ent cannot rely on art. 19 even if it did post the material portions of the
procedure and work instructions.
tin board in September 2009. If this were so, the corrective
action policy was a “fait accompli” by the time Respondent let
the Union know of the new policy, for which there can be no
waiver of the Union’s bargaining rights, Pontiac Osteopathic
Hospital, 336 NLRB 1021, 1023–1023 (2001).7
Contents of the Procedure for Corrective Action
By way of background, the procedure emphasizes Respond-
ent’s commitment to safety. As to scope, the document states it
applies to all employees working in any Kennametal facility
worldwide, but that “with the approval of the EHS Steering
Committee or its designee, the scope of this procedure may
vary from facility to facility, based on applicable labor laws.”
As to responsibility, the procedure states that the highest
ranking employee at any site is responsible for environmental,
health and safety compliance and that the facility management
is responsible for ensuring all employees are in total compli-
ance with all safety procedures/standards/norms. The burden
placed on management at each facility is very similar to the
stated purposed of the MBS, which Respondent implemented at
Lyndonville in February 2010.
The procedure document goes on to state that facility man-
agement and human resource representatives will assist the
facility management in ensuring that appropriate and con-
sistent, progressive corrective action is taken against every
employee who violates applicable safety procedure/stan-
dards/norms.
The document distinguishes between serious violations and
other violations. This is similar to the distinctions made in
Section 17 of the Federal Occupational Safety and Health Act
(OSH Act), 29 U.S.C. § 666.8 Respondent’s Procedure defines
a serious violation as one that is likely to result in a severe dis-
abling injury such as amputation, spinal injury, broken finger or

7 R. Exh. 22 contains an email exchange between Morissette and
Ginger Noyes, who was Respondent’s human resource manager until
December 31, 2009. In that exchange Morissette advises that an em-
ployee, Robert Gordon, should be disciplined according to the Correc-
tive Action Policy but must be disciplined under the previous safety
discipline policy due to the fact that Respondent had not posted the
entire policy. First of all, from these emails it is clear that the correc-
tive action policy, i.e., the first three pages of GC Exh. 32 had not been
posted prior to September 2009. Moreover, Noyes’ response is that she
will post the Procedure for Corrective Action for Safety Violations.
Her response does not mention the work instructions which contain the
requirements for a 3-day suspension for a first time serious violation
and termination for a second serious violation within 24 months. I find
the work instructions were not posted and in force at Lyndonville until
sometime after July 2010. I discredit the testimony of Rich Brighenti
to the contrary at Tr. 652. None of the disciplinary actions taken prior
to the termination of Ken Wilkins appear to follow the discipline policy
set forth in the work instructions. The Accident Investigation Policy
referred to by Noyes may be a different document.
8 Sec. 17 of the OSH Act provides that, “a serious violation shall be
deemed to exist in a place of employment if there is a substantial prob-
ability that death or serious physical harm could result from a condition
which exists, or from one or more practices, means, methods, opera-
tions, or processes which have been adopted or are in use, in such place
of employment unless the employer did not, and could not with the
exercise of reasonable diligence, know of the presence of the viola-
tion.”
KENNAMETAL, INC. 561
limb, unconsciousness or death. It then gives examples, “which
warrant corrective action” including two relevant to the disci-
plines at issue in this case, “bypassing safety devices or ma-
chine guards,” and “improper use of equipment or using inap-
propriate equipment for the task which is likely to result in a
significant injury.”
The procedure defines other violations as those that are not
likely to result in a severe disabling injury such as an amputa-
tion. . . . One of the examples given is “failure to use required
personal protective equipment, such as gloves.” and “improper
use of equipment or using wrong equipment for the task.”
The document mandates that, in the discretion of facility
management, for a first time serious violation, an employee is
to be suspended for 3 days and for a second serious violation,
the employee is to be terminated. The implementation of the
new discipline policy for safety violations was also a significant
departure from Respondent’s longstanding progressive disci-
pline policy (Tr. 529). This was a material change in Respond-
ent’s past practice regarding a mandatory subject of bargaining,
which Respondent was not privileged to change unilaterally,
Toledo Blade Co., 343 NLRB 385, 387 (2004).
An employer’s practices, even if not required by a collective-
bargaining agreement, which are regular and longstanding,
rather than a random or intermittent, become terms and condi-
tions of unit employees’ employment, which cannot be altered
without offering their collective bargaining representative no-
tice and an opportunity to bargain over the proposed change,
Granite City Steel Co.,167 NLRB 310, 315 (1967); Queen
Mary Restaurants Corp. v. NLRB, 560 F.2d 403, 408 (9th Cir.
1977); Exxon Shipping Co., 291 NLRB 489, 493 (1988); B & D
Plastics, 302 NLRB 245 fn. 2 (1991); DMI Distribution of
Delaware, 334 NLRB 409, 411 (2001). A practice need not be
universal to constitute a term or condition of employment, as
long as it is regular and longstanding, Locomotive Firemen &
Enginemen, 168 NLRB 677, 679–680 (1967). Respondent’s
unilateral abandonment of the past practice of progressive dis-
cipline for safety violations violated Section 8(a)(5) and (1).
I also note that article 6 of the collective-bargaining agree-
ment in force (GC Exh. 4) provides that the employer has the
right to discharge, suspend or otherwise discipline employees,
but that no such action shall be taken without just cause. Re-
spondent’s Procedure for Corrective Action, as implemented at
Lyndonville, converted virtually any significant safety violation
or injury into just cause for discipline or discharge. In so do-
ing, it materially modified the parties’ contract and was done so
without providing the Union with notice of this change and an
opportunity to bargain about it.
The Management Based Safety Program
Lyndonville Plant Manager Richard Brighenti and EHS Co-
ordinator Amy Morissette attended training on the MBS Pro-
gram at Respondent’s headquarters in Latrobe, Pennsylvania, in
December 2009.
Respondent’s Management Based Safety Program was pre-
sented to unit employees at Lyndonville via a power point
presentation on February 2, 2010. The next day, the Union
requested that Respondent bargain with it over implementation
of the program. Respondent refused, asserting that MBS was
not a mandatory subject of bargaining. The Union then filed a
grievance. Respondent reasserted this position in a meeting
attended by USWA staff representative Carl Turner on March
19, 2010.
In July 2010, as part of the MBS, Respondent installed lami-
nated white boards in every production area of the plant. Next
to these boards were laminated check lists for each production
operation. There are about 40 to 50 checklists in the Lyndon-
ville facility. The Union was not consulted and was not given
the opportunity to have an input regarding the content of the
check lists.
Each employee was required beginning in July to review the
check list pertaining to his work each day and then initial each
item on the white board corresponding to a requirement on the
safety checklist. If the employee initialed the item in green it
signified that the employee agreed with the statement on the
check list. The employee was to initial in red if he or she disa-
greed with any statement and was to complete an EHS (envi-
ronmental, health and safety) alert.
The objective requirements of the safety checklists were not
new. Thus, if an employee was, for example, required to wear
hearing protection after MBS, that was also the case prior to the
implementation of MBS. Similarly, an employee’s duty to
comply with Respondent’s jewelry policy did not change with
the implementation of MBS.
If the operator disagrees with the statement on the checklist,
they are required to initial the laminated white board in red and
fill out an EHS alert. Then the operator’s supervisor is sup-
posed to determine what if anything needs to be done to make
the operation safe.
For example, General Counsel’s Exhibit 8 is a safety check-
list for hand chamfer grinders.9 Among the approximately 20
items that the operator must attest to are:

That he or she has been properly trained to operate the ma-
chine safely;10
That he or she checked the grinding wheel and determined
that it is in good condition and free from defects.

The installation of the white boards and the initialing proce-
dure was implemented unilaterally by Respondent. John East-
man, the chair of the union grievance committee and member
of the employer-union safety committee, refused to initial the
white boards on the grounds that Respondent was shifting the
blame for any accident to the machine operator. Eastman put a
check or his clock number on the white board instead of his
initials until Respondent threatened to discipline him.

9 The dictionary definition of chamfer is a flat surface made by cut-
ting off the edge or corner of something. I assume the hand chamfer is
the equipment by which this is accomplished.
10 The discipline imposed on Ken Wilkins establishes the potential
impact of initialing off on this item. Eric Huttenlocker’s conclusion
that Wilkins had been adequately trained and documents indicating that
he had been adequately trained were relied upon by Respondent in
deciding to terminate Wilkins, Tr. 632.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 562
Changes in the Way Accidents are Investigated Since
the Implementation of MBS
Prior to the implementation of MBS, the union safety com-
mittee was actively involved in investigating accidents at the
Lyndonville plant. This included participation in the Accident
Report. An example of the report is in this record as General
Counsel’s Exhibit 17. Employer and union safety committee
members worked jointly in addressing issues concerning the
accident. Among these were whether or not the injured em-
ployee was properly instructed and whether he or she was per-
forming the operation consistent with those instructions. If the
task was not being done in accordance with the operator’s in-
structions, the committee members addressed the issue of
whether the employer and/or the injured employee could have
prevented the accident.
Upon implementation of MBS, the Union and its safety
committee played no role in investigating accidents at the plant.
This was done unilaterally by Respondent. A change in an
employer’s investigatory method, which as in this case, sub-
stantially alters the mode of investigation and character of evi-
dence on which an employee’s continued job security might
hinge, is a bargainable change in the terms and conditions of
his or her employment. By unilaterally cutting the Union out of
the investigation of accidents in situations in which the investi-
gation could lead to serious disciplinary consequences to the
injured employee, Respondent violated Section 8(a)(5) and (1),
Medicenter, Mid-South Hospital, 221 NLRB 670, 675 (1975).
The Union filed a grievance regarding its exclusion from ac-
cident investigations on January 14, 2011. The grievance al-
leged that Respondent is violating section 16.07 of the collec-
tive-bargaining agreement, which requires an investigation of
by a union member of the joint safety committee and an em-
ployer representative.
Discipline Imposed Before and After the
Implementation of MBS
On August 24, 2010, Doug Noyes, a former union president,
was drilling a hole in a piece of metal, when the metal stuck on
the drill bit and spiraled up cutting Noyes’ left hand. Noyes was
not wearing protective gloves while performing this operation,
although the use of such gloves is not required by Respondent,
but merely recommended. Noyes received five stitches in his
left hand and was placed on restrictive duty, i.e., painting in-
stead of fabricating metal.
Respondent suspended Noyes for 1 day on September 2,
2010. The General Counsel alleges that Noyes’ suspension is
part of or at least related to the implementation of MBS. Re-
spondent contends the suspension has nothing to do with MBS.
I find the Respondent’s escalation of discipline was part and
parcel of the MBS and thus its enhanced disciplinary policy
was implemented in violation of Section 8(a)(5) and (1).11

11 I would note that the 1-day suspension appears inconsistent with
the Procedure for Corrective Action. Failure to use required personal
protective equipment such as gloves, is classified as an “other” viola-
tion for which a suspension was not warranted under the work instruc-
tions. Moreover, Noyes did not fail to use required personal protective
What this record clearly demonstrates is that Respondent es-
calated its disciplinary punishments for safety violations and
accidents at virtually the same time that it introduced MBS at
Lyndonville. Between July 2003 and February 12, 2010, Re-
spondent took very few disciplinary actions for safety viola-
tions. Moreover, it had never imposed more than an oral warn-
ing for a safety violation or accident (GC Exh. 39).12
On February 12, 2010, Respondent suspended David Jenotte
for 1 day for failing to follow Respondent’s lockout/tagout
policy. A 1-day suspension is not consistent with the Procedure
for Corrective Action/ Work Instructions. A lockout/tagout is
classified as a serious violation for which at least a 3-day sus-
pension would be imposed. Thus, in February 2010, although
while Respondent had escalated in its disciplinary policy short-
ly after the implementation of MBS, it had not implemented the
Correction Action/Work Instructions as policy at Lyndonville.13
On February 12, Respondent also issued an unprecedented
second written warning to employee Chad Tibbetts for failing
to lock out a belt sander. This was reduced to a first written
warning apparently because there was no notice regarding lock
out/tag out on the machine. I infer from its timing that the es-
calation to a written warning 2 was associated with the in-
creased pressure placed on management by the implementation
of MBS and the involvement of Eric Huttenlocker in the man-
agement of labor relations at the Lyndonville facility beginning
in December 2009.
On April 12, 2010, Respondent initially issued a written
warning 2 to employee David Brousseau for a safety violation.
This was reduced to a written warning 1 and then rescinded
pursuant to a grievance settlement. On April 19, Respondent
issued a written warning 2 to First-Shift Production Supervisor
Sean Jewell. Jewell went into a power supply cabinet without
the proper protective equipment, exposing him to the hazard of
being burned. Since this would appear to serious violation,
Jewell’s discipline appears inconsistent with the work instruc-
tions for corrective actions. This is additional evidence that the
disciplinary policy utilized to suspend Noyes and terminate
Kenneth Wilkins had not been fully implemented as of April
2010.14

equipment; gloves were merely recommended for the operation in
which Noyes cut his hand.
12 In April 2007, Respondent initially proposed issuing a first written
warning to employee David Jennotte for a lock out/tag out violation,
but on its own accord, without any apparent intervention of the Union,
reduced Jennotte’s discipline to an oral warning, GC Exh. 39, p. 10.
13 Amy Morissette testified about the suspension of Jenotte at Tr.
425–426. I discredit that testimony. First of all, I find that Morissette
had no first-hand knowledge of the process by which Jenotte was sus-
pended for 1 day; her testimony in this regard is pure hearsay. Moreo-
ver, as stated before, a 1-day suspension for failing to lockout/tagout is
inconsistent with the work instructions.
14 The new disciplinary policy applies to management employees as
well as bargaining unit employees, Tr. 434. Although failure to use
protective equipment may often or usually be another violation, it
would appear to be a serious violation when the likely result of an
accident if it would to occur would be burns. Under the OSH Act, for
example, it is the likelihood of serious physical harm or death arising
from the violative condition if an accident occurs, rather than the likeli-
hood of the accident occurring, which is considered in determining
KENNAMETAL, INC. 563
The next safety discipline was the suspension given to
Noyes. I infer that this ratcheting up on the discipline scheme
was also related to MBS since it followed closely the installa-
tion of the white boards and Respondent’s August 24, 2010
memo insisting the employees initial the white boards. It was
also the result of the resignation of Taryn Blair as human re-
sources director at Lyndonville and the assumption of her day-
to-day responsibilities by Eric Huttenlocker.15 Indeed, I find
that Huttenlocker implemented the new disciplinary policy
without providing notice to the Union between July and early
September.
On October 27, 2010, employee Ken Wilkins received sev-
eral cuts on his hand when he reached into a grinder to retrieve
a jammed part. The feeder block of the grinder pushed Wil-
kins’ hand into the moving grinding wheel. Respondent inves-
tigated this accident without input from any union members of
the safety committee. Respondent determined that Wilkins was
at fault because he did not wait for the grinding wheel to stop
and did not insure that the feeder block switch was in the auto-
matic position. Wilkins was off of work for several weeks as a
result of his accident.
In December, Eric Huttenlocker made the decision to termi-
nate Wilkins’ employment. Respondent presented Wilkins
with a termination letter on January 11, 2011. In January 2011,
an inspector of the Vermont State OSHA plan conducted an
inspection related to the Wilkins accident. He has informed
Respondent that it is likely to be issued a citation because the
guard on Wilkins’ machine could be opened without automati-
cally stopping the grinding wheel. The VOSHA inspector also
recommended that the labeling of the switch on Wilkins’ ma-
chine be replaced or enhanced to more clearly indicate whether
or not it was in the automatic position.16
Union Information Requests: (GC Exh. 1(v),
Exhs. A–D; GC Exh. 20, Reverse Side)
Respondent and the Union signed a Memorandum of
Agreement regarding the shipping room at Lyndonville in
March 2002. That MOU provides that if, in any continuous 90-
day period, the cumulative hours of employees temporarily
transferred to work in the shipping room is equal or greater than
40 hours each week, a regular full-time position will be created.
On April 5, 2010, the Union requested that Respondent provide
it with a list of names of employees transferred to the shipping
department during the prior 3 months and the number of hours
each of them worked in the shipping department during this
period. It asked for the information by April 12. Respondent
provided a partial list in April but did not give the Union a
complete list until August 20.
On April 21, 2010, Respondent posted a notice informing
employees that effective June 1, 2010, all employees would be

whether a violation is serious. See Dravo Corp., 7 BNA OSHC 2095,
2101 (No. 16317, 1980), pet. for review denied 639 F.2d 772 (3d Cir.
1980). An event that is not unexpected and thus likely to occur is not
an accident.
15 Blair was Respondent’s human resources director at Lyndonville
from about January 1 to July 2010.
16 OSHA citations may be issued for a condition completely unrelat-
ed to an accident that leads to the inspection of a workplace.
required to wear the highest level of slip resistant shoes. The
mandated shoes had a particular grid pattern on the sole and are
available through a supplier named Shoes for Crews. The no-
tice instructed employees with a medical condition that would
not allow them to wear such shoes to discuss their problem with
Taryn Blair, then Respondent’s human resource manager.
On May 26, 2010, the Union requested proof and/or docu-
mentation as to the reasons that the tread design Respondent
was proposing to require on safety shoes was superior to other
slip resistant shoes approved by Federal OSHA and Vermont’s
OSH agency. The Union also requested a list of employees
who had a deviation from Respondent’s proposed shoe policy.
The Union requested that this information be provided by June
3. In November 2010, Respondent provided Union with a list
of employees who were exempt from its shoe policy. It did not
give the Union the name of an employee who was allowed to
wear different shoes for medical reasons, citing the privacy
rules of the HIPAA (Health Insurance Portability and Account-
ability Act) statute. It has not provided the Union any docu-
ments regarding the superiority of the safety shoes it requires.
On June 2, 2010, the Union requested that Respondent pro-
vide it a copy of documented ergonomic restrictions for the
hand chamfer job, by June 7. An ergonomic study was per-
formed at Lyndonville in March 2005. The physical therapist
performing the study advised Respondent in September 2010,
that on the basis of his 2005 evaluation, he believed limiting an
employee to 4 hours a day on the hand chamfer would alleviate
the risk of ergonomic injury (e.g., carpel tunnel syndrome).
Respondent did not provide the Union with a copy of either the
2005 analysis or the September 2010 note from the physical
therapist.
On July 16, 2010, USWA Staff Representative Carl Turner
requested Respondent provide him any information on what he
understood was a new safety procedure at the plant and to bar-
gain with the Union over its implementation. This referred to
Respondent’s posting of the white boards and the requirement
that employees initial these boards. Respondent has not pro-
vided this information.
Analysis
Respondent Violated Section 8(a)(5) and (1) by
Implementing New Policies Regarding Discipline and
Discharge for Safety Violations
Board law is clear that disciplinary policies and procedures
constitute mandatory subjects of bargaining. Further, work
rules that could be grounds for discipline are mandatory sub-
jects of bargaining, Southern Mail, Inc., 345 NLRB 644, 646
(2005); Pepsi-Cola Bottling Co. of Fayetteville, Inc., 330
NLRB 900, 904 (2000), enfd. in relevant part 24 Fed. Appx.
104 (4th Cir. 2001); Frontier Hotel & Casino, 309 NLRB 761,
766 (1992), enfd. 71 F.3d 1434 (9th Cir. 1995).
It is clear that the Union requested to bargain over the MBS
and that Respondent refused. At least that part of the MBS
requiring employees to initial the white boards is a mandatory
subject of bargaining in that employees are subject to discipline
if they refuse to do so. Thus, Respondent violated Section
8(a)(5) with regard to the MBS at least with respect to this re-
quirement of the program.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 564
Secondly, I find that Respondent violated Section 8(a)(5) and
(1) with regard to the disciplinary policy reflected in the work
instructions for corrective action regardless of whether it is
deemed to be part of MBS or a totally separate policy. Howev-
er, in the context of this case to consider the disciplinary policy
for safety violations as a totally separate and distinct matter
from MBS would elevate form over substance. MBS and the
discipline policy are part of the same corporate initiative to
improve Respondent’s safety record, particularly at Lyndon-
ville.
Regardless of what was posted on Respondent’s bulletin
board, it is clear that the safety policy was not implemented
until July 2010.17 Moreover, even assuming that the policy was
in effect earlier, Respondent’s disciplinary policy for safety
violations changed from virtual nonenforcement to strict en-
forcement after July 2010. I infer that the implementation or
stricter enforcement of this safety policy is related to other
initiatives that clearly were part of MBS, the erection of the
white boards and the imposition of the requirement that em-
ployees certify the safety of their work environment.
Thus, the change in the safety policy, made without provid-
ing the Union an opportunity to bargain, is a violation of Sec-
tion 8(a)(5), whether or not it is technically part of MBS,
Southern Mail, supra. As stated, I find Respondent did not
provide adequate notice of the policy itself until January 2011
and that for this reason, its 10(b) contention is without merit.
The Union did not Waive its Bargaining Rights Over
MBS or Respondent’s New Disciplinary Policy
To be effective, a waiver of statutory bargaining rights must
be clear and unmistakable, California Offset Printers, 349
NLRB 732, 733 (2007). Wavier can occur in any of three
ways, by express provision in a collective bargaining agree-
ment, by the conduct of the parties (including past practices,
bargaining history, and action or inaction) or by a combination
of the two. Nothing in this record establishes a waiver of the
Union’s bargaining rights with regard to those parts of the MBS
effecting the terms and conditions of unit members’ employ-
ment or the discipline policy implemented by Respondent in
2010 for safety violations.
The mere fact that a union previously acquiesced in an em-
ployer’s unilateral implementation of safety rules does not give
an employer the right to make different changes in plant rules,
or other terms and conditions of employment, if those changes
are material and significant, Bath Iron Works, 302 NLRB 898,
900 (1991). Moreover, in the instant case, while the Union

17 At pp. 8–9 of its brief, Respondent suggests that employees were
disciplined pursuant to the Corrective Action policy beginning in Feb-
ruary 2010. It suggests that none were suspended because their viola-
tions “did not result in any actual harm.” An accident or injury is irrel-
evant to whether a safety violation is classified as serious under Re-
spondent’s Procedure for Corrective Action for Safety Violations.
Respondent’s failure to discipline any employee with more than a
warning, other than a 1-day suspension for Jenotte, until August 2010,
demonstrates that the policy had not yet been implemented. Respond-
ent’s claim at p. 9 of its brief, that Noyes’ accident was the first serious
safety violation following the alleged adoption of the Corrective Action
Policy in 2009, is simply inaccurate.
previously acquiesced in some of Respondent’s unilateral
changes, it did not acquiesce in others and requested bargain-
ing.
The Legality of Respondent’s Disciplinary Policy for
Safety Violations was Tried by Consent and
Fully and Fairly Litigated
Assuming that the complaint allegations do not sufficiently
addresses Respondents’ disciplinary policy for safety viola-
tions, I conclude that the issue was tried by consent and fully
and fairly litigated. It is well established that the Board may
find and remedy an unfair labor practice not specifically alleged
in the complaint, “if the issue is closely connected to the sub-
ject matter of the complaint and has been fully litigated,” Per-
gament United Sales, 296 NLRB 333, 334 (1989), enfd. 920
F.2d 130 (2d Cir. 1990); Gallup, Inc., 334 NLRB 336 (2001).
The Procedure for Corrective Action and Work Instructions
and strict enforcement of the new disciplinary policies are
closely connected to the allegation that Respondent violated the
Act by unilaterally implementing the MBS in February 2010.
First of all (GC Exh. 42), a document promulgated to MBS,
references counseling and discipline as one of the tools that
Respondent intended to utilize in improving its safety record
and reducing the cost to it of workplace accidents. Secondly, I
infer, in the absence of any contrary evidence, that strict en-
forcement of the discipline policies reflected in the work in-
structions are part of the same initiative as is MBS to render
Kennametal’s workplaces safer.
The complaint in this matter did not allege that Respondent
violated Section 8(a)(5) by implementing new disciplinary
policies for safety violations, until the filing of the posthearing
briefs. However, that Respondent was on notice that the disci-
plinary policies were at issue in this case is established by its
motion to amend its answer to include a 10(b) defense to any
challenge to the Disciplinary Corrective Action Policy (Tr. 457)
and the General Counsel’s motion for the Board to remedy the
discipline and discharge of employees Noyes and Wilkins.
Moreover, Respondent in fact defended against any 8(a)(5)
challenge to this policy by contending that it had been in force
since at least September 2009, that the Union had notice of the
policy by the posting of documents on a bulletin board and that
the Union had waived its bargaining rights on this policy by
remaining silent in the face of such notification. Respondent
did not contend that it bargained with the Union regarding the
markedly stricter discipline imposed on employees for safety
violations beginning in February 2010 and then made even
stricter starting with Doug Noyes’ injury in August and clearly
could not have done so.
Failure to Respond to Information Requests;
Delay in Responding
Upon request, an employer has the legal duty to furnish its
employees’ bargaining agent with information relevant and
necessary to the performance of its statutory duties. NLRB v.
Acme Industrial Co., 385 U.S. 432 (1967). The law deems
information about the wages, hours, and other terms and condi-
tions of employment of unit employees to be presumptively
relevant. Timken Roller Bearing Co., 138 NLRB 15 (1962).
KENNAMETAL, INC. 565
An employer’s statutory obligation to furnish the union rele-
vant information, on request, absent special circumstances, is
not relieved merely because the union may have access to the
requested information from other sources, Postal Service, 276
NLRB 1282, 1288 (1985); New York Times Co., 265 NLRB
353 (1982); Kroger Co., 226 NLRB 512 (1976). Thus, the
extent to which the Union had access to information regarding
the transfer of employees to the shipping room is irrelevant to
Respondent’s obligation to provide the information requested
by the Union on this issue.
Respondent has offered no valid excuse or explanation for its
failure to comply with the Union’s other information requests:
(1) information showing that the slip resistant shoes it proposed
to require were superior to other types;18 (2) information about
ergonomic restrictions for the hand chamfer,19 and (3) Carl
Turner’s request relating to the requirements for initiating the
white boards. Thus, Respondent has violated Section 8(a)(5)
and (1) in failing to provide this information.20
Delay in Providing Names and Hours of Employees
Transferred to the Shipping Room
An employer must respond to an information request in a
timely manner. An unreasonable delay in furnishing such in-
formation is as much of a violation of Section 8(a)(5) of the Act
as a refusal to furnish the information at all, American Signa-
ture, Inc., 334 NLRB 880, 885 (2001).21
The Board recently summarized the standard that it employs
in assessing a claim of unreasonable delay: In determining
whether an employer has unlawfully delayed responding to an
information request, the Board considers the totality of the
circumstances surrounding the incident. Indeed, it is well estab-
lished that the duty to furnish requested information cannot be
defined in terms of a per se rule. What is required is a reasona-
ble good faith effort to respond to the request as promptly as
circumstances allow. In evaluating the promptness of the re-
sponse, the Board will consider the complexity and extent of
information sought, its availability and the difficulty in retriev-

18 Respondent in its brief at p. 23 states it had no such information.
If so, it was required to so inform the Union, Days Hotel of Southfield,
306 NLRB 949, 954 (1992). There is no evidence that Respondent
replied to the Union’s May 26, 2010 request, although Amy Morissette
testified that she told the Union that OSHA had no such information
sometime between April and September 2010, see Tr. 335, 491–492.
19 Respondent at page 23 also states that the Union was provided the
ergonomic study regarding the hand chamfer in 2009, before it made its
information request. The preponderance of the record evidence is to
the contrary, Tr. 167, 120–121.
20 I have no basis for determining whether Respondent’s claim that it
could not identify employees who were exempted from the shoe policy
pursuant to HIPAA is legitimate or not and thus conclude that Re-
spondent did not violate the Act in this regard.
21 This case has also been cited under the name of Amersig
Graphics, Inc.
ing the information, West Penn Power Co., 339 NLRB 585,
587 (2003), enf. in pertinent part 349 F.3d 233 (4th Cir. 2005).
Applying this test to instant case, I find that Respondent vio-
lated Section 8(a)(5) and (1) in not providing the names and
hours of work of employees transferred to shipping room for
over 4 months. In American Signature, supra, the Board found
a violation where the employer provided the information re-
quested by the Union two and a half to three months after the
request. In Earthgrains Co., 349 NLRB 389, 400 (2007), the
Board found a violation where the employer responded four
months after the request without explaining the delay.
Respondent has offered no explanation as to why it took four
months to provide the Union with the information it requested
regarding these temporary transfers. Thus, I find a violation
with respect to the delay in providing this information.
SUMMARY OF CONCLUSIONS OF LAW
Respondent Kennametal, Inc. violated Section 8(a)(5) and
(1) by:
(1) failing and refusing to bargain with the Union over the
implementation of the Management Based Safety Program
insofar as it required employees to take such actions as initial-
ing agreement or disagreement with the safety checklist on its
white boards upon pain of discipline.
(2) Excluding the Union from accident investigations.
(3) By unilaterally implementing and/or more strictly enforc-
ing its disciplinary policies for safety violations.
(4) By suspending Doug Noyes and terminating Kenneth
Wilkins.
(5) By failing and/or delaying the furnishing to the Union of
information it requested that is necessary for and relevant to the
Union’s duties as collective-bargaining representative of Re-
spondent’s employees.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having disciplined Kenneth Wilkins in vio-
lation of Section 8(a)(5) of the Act, it must offer Ken Wilkins
reinstatement and make Wilkins whole for any loss of earnings
and other benefits, computed on a quarterly basis from date of
discharge to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons,
283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010). It must
also make Doug Noyes whole for his 1-day suspension in a
similar manner.
[Recommended Order omitted from publication.]