Loral Electronic Systems

National Labor Relations Board - Board Decisions

Dec 18, 1980

253 N.L.R.B. 851 (N.L.R.B. 1980)

LORAL ELECTRONIC SYSTEMS
Loral Electronic Systems, A Division of Loral Cor-
poration and Local 431, International Union of
Electrical, Radio and Machine Workers, AFL-
CIO. Case 2-CA-16631
December 18, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
ZIMMERMAN
On June 25, 1980, Administrative Law Judge
Howard Edelman issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the General
Counsel filed a brief in support of the Administra-
tive Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Loral Electron-
ic Systems, A Division of Loral Corporation,
Bronx, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the
said recommended Order.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge: This
case was heard before me on February 21, 1980, in New
York, New York. The complaint in the above-captioned
case issued on October 1, 1979, upon a charge filed on
July 31, 1979, by Local 431, International Union of Elec-
trical, Radio and Machine Workers, AFL-CIO, herein
called the Union.
The complaint alleges, inter alia, that Loral Electronic
Systems, A Division of Loral Corporation, herein called
Respondent, failed and refused to supply to the Union
certain information requested by the Union and neces-
sary and relevant to the Union's function as the collec-
tive-bargaining representative of Respondent's produc-
tion and maintenance employees.
A hearing in this matter took place on February 21,
1980.
Briefs were filed by counsel for the General Counsel
and counsel for Respondent. Upon consideration of the
253 NLRB No. 116
entire record, the briefs, and my observation of the de-
meanor of the witnesses, I make the following:
FINDINGS OF FACI
1. THE BUSINESS OF RESPONDINT
Respondent is a New York corporation engaged in the
manufacture, assembly, and nonretail sale and distribu-
tion of electronic components and related products. Re-
spondent has two facilities located in Bronx, New York,
and facilities in Yonkers and White Plains, New York.
During the past year, in the course and conduct of its
business operations, Respondent sold and shipped from
its New York facilities electronic components and other
related products valued in excess of $50,000 directly to
points outside the State of New York. I find that Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE ABOR ORGANIZATION INVOI.VED
The Union is a labor organization within the meaning
of Section 2(5) of the Act. I so find.
I1I. THE AlI.EGEI) UNFAIR LABOR PRACTICIES
A. Bargaining History
The Union has had a series of collective-bargaining
agreements with Respondent covering all production and
maintenance employees, excluding office clerical employ-
ees, engineers, technicians, draftpersons, protective em-
ployees, executives, guards and supervisors as defined in
Section 2(11) of the Act, for about 32 years. The present
agreement commenced on July 1, 1978, and expires on
June 30, 1981. The employees covered by these agree-
ments are employed by Respondent at its two Bronx,
New York, facilities. There are presently about 450 unit
employees.
Prior to 1975, Respondent's entire operation was con-
fined to the Bronx locations. In July 1975 Respondent
moved its research department and office personnel to a
facility in Yonkers, New York. Production work contin-
ued, as in the past, at the Bronx facilities.
Shortly after the research department moved to Yon-
kers, the Union claimed to Respondent's representatives
that the technicians employed by Respondent in the re-
search department were performing production work
that should have been performed by unit employees. Re-
spondent denied the Union's contention, claiming the
work the technicians were performing was research
rather than production work.
As a result of this dispute, the Union and Respondent
entered into a stipulation which became part of the col-
lective-bargaining agreement between the parties. The
stipulation provided, in relevant part, (a) that no employ-
ees employed by Respondent at its Yonkers facility were
performing bargaining unit work, i.e., production work,
that would normally be assigned to unit employees. The
stipulation asserted that the work in question was re-
search work being performed by engineers and techni-
cians on the Y.I.G. (a complex electronic device dis-
cussed in detail below) in an attempt to make it possible
g51
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to "produce" the Y.I.G.'s at the Bronx facilities on a
normal production basis. (b) Respondent agreed that if
and when bargaining unit work was performed at the
Yonkers facility the Union's collective-bargaining agree-
ment would cover such work and (c) the Union shall
have the right to visit the Yonkers facility on a periodic
basis to police the collective-bargaining agreement.
As a result of this stipulation the Union has sent repre-
sentatives to the Yonkers facility every 2 months or so
from the date of execution of the stipulation to the pres-
ent. The purpose of these visits is to enable the Union to
enforce this stipulation.
In the spring of 1977, the Union attempted to organize
the office clerical, technical, and professional employees
employed by Respondent at its Yonkers facility and filed
a petition for an election toward this end (Cases 2-RC-
17627, 17628, and 17629). An election was held on June
17, 1977. A certification of results subsequently issued
certifying that the Union had not been selected as the
collective-bargaining representative of the unit classifica-
tions set forth above.
B. The Work in Dispute
The electronic components produced by Respondent
are highly technical and extremely complex in design.
Virtually all production work performed by unit person-
nel was at one time in the research or pilot plant stage
and performed by engineers and technicians. Engineers
and technicians engaged in such research on a particular
project develop, if they are successful, a prototype. A
prototype is loosely defined as a component which has
been successfully developed in the laboratory and pilot
plant stage so that it is readily reproducible and therefore
capable of mass production. When such prototype is
ready for "production" the work is then assigned to Re-
spondent's unit personnel in the Bronx facilities.
Among the criteria that determine when a prototype
becomes production work are the number of units pro-
duced in a given period of time and the existing blue-
prints, plans, and manuals.
A Y.I.G. device, described above, is an acronym for
Yetrium Iran Garnet. The Y.I.G.'s are highly sophisticat-
ed complex electronic devices. They are essentially a
band pass filter which is tuned across a wide frequency
range to produce certain power outputs at certain fre-
quencies. The Y.I.G. itself is a subassembly which is con-
nected to other electronic components, all of which are
mounted in a box-like enclosure. This box-type enclosure
containing the Y.I.G. is a critical component of the F-15
radar warning receiver, used by the United States Gov-
ernment, presumably the military forces.
Since 1975, the Union has claimed that the work per-
formed by technicians at the Yonkers and the White
Plains facility on a particular new model Y.I.G. compo-
nent was production work. Unit personnel have pro-
duced other, older model Y.I.G. components in the past.
Among the reasons for the belief by the Union that work
on this new model Y.I.G. was "production" work was
the increase in the number of technicians employed at
Yonkers and White Plains from about 7 in 1975 to be-
tween 17 and 21 at present.
Since 1975, and pursuant to the Union's claim concern-
ing the new model Y.I.G., Pedro Colon, Union business
agent, and several other union representatives met with
Respondent's president, Frank Lanza, and vice president
and chief of production, George Rashkin, about two to
three times each year. The Union's position at each of
these meetings was that the work being performed by
the technicians on the new model Y.I.G. was production
work and therefore bargaining unit work that should be
assigned to unit personnel in Respondent's Bronx facili-
ties. Lanza and Rashkin maintained that the new model
Y.1.G.'s were not yet ready for production.
On January 22, 1979, in accordance with the grievance
and arbitration provisions of their collective-bargaining
agreement with Respondent, the Union filed a grievance
alleging that the work of the technicians in Respondent's
Yonkers facility in connection with the new model
Y.I.G. was production work and should be assigned to
employees in the bargaining unit.
Between January 22, 1979, and June 20, 1979, the par-
ties on three separate occasions met in an attempt to
settle the grievance but were unable to do so. Respond-
ent by its labor counsel, Murray Portnoy, took the posi-
tion that the technicians' work on the new model Y.I.G.
was not production work. The Union through its busi-
ness representative, Colon, maintained that the techni-
cians were performing unit work and such work should
be assigned to the bargaining unit.
On June 20, 1979, the Union, pursuant to the griev-
ance and arbitration provisions of its agreement de-
scribed above, filed a request for arbitration with the
New York State Mediation Board concerning the "Per-
formance of Bargaining Unit Production Work at the
Yonkers and White Plains Facilities." On the same date,
the Union sent a letter to Respondent requesting that the
following information be supplied to the Union concern-
ing the production of Y.I.G.'s at Respondent's Yonkers
and White Plains facilities:
1. How many YIG units have been built and/or
tested at the Yonkers facility?
2. How many YIG units have been sold by
Loral?
3. Are these YIG units accompanied by a mainte-
nance manual? If so, please attach a copy to your
answer.
4. What method sheets, instruction sheets or man-
uals exist for use by those who build and/or test the
The grievance and arbitration provisions of the bargaining agreement
between the parties, art. XIX, are as follows
The parties hereby agree that all disputes. differences and grievances
that may arise between the parties shall be taken up in the first in-
stance by the Departmental Steward and the Foreman. If no settle-
ment is arrived at. then the matter shall be promptly taken up by the
Shop Committee and the Employer If they are unable to arrive at a
satisfactory settlement of the dispute, then the matter shall be
promptly taken up by the business representative of the Union with
the Shop Committee. and the Employer If they are unable to settle
the disputes, differences or grievances. then the matter shall be
promptly submitted fr arbitration to an arbitrator designated by the
New York State Board f Mediation Arbitration shall be arranged
to take place within five days. The decision of the arbitrator shall be
Final and binding upon the parties
852
LORAL ELECTRONIC SYSTEMS
YIG units at the Yonkers and White Plains facili-
ties? Please attach copy of the job description of
each such classification to your answer.2
Colon testified that the Union requested information as
to the number of Y.I.G. units built and or tested at the
Yonkers facility because such number would reflect
whether the unit work belonged to production-is the
greater the number of units built or tested, the more
likely the unit was in production. The same reasoning
applied to the Union's request for the number of Y.I.G.
units sold by Respondent. The Union requested copies of
any maintenance manuals, method sheets, or instruction
sheets because, according to Colon, the practice of Re-
spondent has been to prepare such written material when
a component passes from the research stage to the pro-
duction stage. The Union needed to have information
concerning the employees employed at Respondent's
Yonkers and White Plains facilities in order to compare
skills and establish that the bargaining unit employees are
capable of performing the alleged production work cur-
rently being performed by the technicians.
On July 3, 1979, Respondent by a letter from its labor
counsel Portnoy, in response to the Union's request, in-
formed the Union that Respondent would not supply the
requested information. Respondent further took the posi-
tion in this letter that the NLRB election held on June
17, 1977, described above. had determined that the em-
ployees (technicians) engaged in the Y.I.G. work (at
Yonkers and subsequently at Yonkers and White Plains)
did not wish to be represented by the Union and there-
fore the Union's request for such information was not
relative to any mandatory subject of bargaining.
There has been no further contact between the parties
concerning the Union's request for information.
Subsequently Respondent filed a petition in the United
States District Court, Southern District of New York,
seeking a permanent stay of the arbitration herein re-
quested by the Union. The case was heard by Judge
Robert W. Sweet, who on February 6, 1980, concluded
that the dispute fell within the scope of the arbitration
clause of the parties' collective-bargaining agreement and
denied Respondent Petitioner's application for a perma-
nent stay of arbitration.
Contentions of the Parties
Counsel for the General Counsel and the Union con-
tend that the information requested is relevant and neces-
sary for the Union's performance of its functions as the
exclusive collective-bargaining representative. In particu-
lar it is contended such information is necessary in order
for the Union to evaluate the propriety of proceeding
with the pending arbitration.
Respondent contends that the Y.I.G. work currently
performed by its technicians is nonunit work. Respond-
ent contends the technicians are performing the same
work they performed at the time of the election in 1977,
in Case 2-RC-17627, wherein the Union sought to repre-
2 Business Agent Colon testified that request number 5 was inaccurate-
ly worded. The request was seeking those classifications of employees
which have worked on Y 1G. units. including those classifications em-
ployed at Respondent's Yonkers and White Plains facilities.
sent a unit of technicians and that the Union by the
pending arbitration is now seeking to accrete to its bar-
gaining unit those technicians the Board found by its cer-
tification it did not represent.
Respondent also contended at the hearing that the in-
formation requested contains government secrets and is
therefore confidential information to which the Union is
not entitled.
Respondent further contends that, inasmuch as there is
a pending arbitration on the issue of whether the techni-
cians are performing bargaining unit work, the instant
case should be deferred pursuant to the Board's Collyer
policy. 3
On March 27, 1980, after the close of this hearing, Re-
spondent filed a motion that the complaint herein be dis-
missed and that I "refer this jurisdictional dispute, pursu-
ant to Section 10(k) of the Act, to the grievance and ar-
bitration procedures under the parties' collective bargain-
ing agreement."
Analysis and Conclusions
The law in this area is clear and well settled. An em-
ployer has a duty to provide upon request information
relevant to bargainable issues. V.L.R.B. v. Trauitr Mfg.
Co., 351 U.S. 149, 153 (1956); N.L.R.B. v. Acme Industri-
al Co., 385 U.S. 432, 435-436 (1967). Where the request-
ed information concerns wage rates, job descriptions, and
other information relating to employees in the bargaining
unit, the information is presumptively relevant to bar-
gainable issues. Fawcett Printing Corporation, 201 NLRB
964 (1973); Curtiss-Wright Corporation Wright Aeronauti-
cal Division, 145 NLRB 152 (1963), enfd. 347 F.2d 61, 69
(3d Cir. 1965); The Timkin Roller Bearing Company, 138
NLRB 15 (1962), enfd. 325 F.2d 746, 750 (6th Cir. 1963),
cert. denied 376 U.S. 971 (1964). Where the request is for
information concerning employees outside the bargaining
unit, the Union must show the requested information is
relevant to bargainable issues. The Brooklyn Union Gas
Company, 220 NLRB 189 (1975); Rockwell-Standard Cor-
poration. Transmission and Axle Division, Forge Division,
166 NLRB 124 (1967), enfd. 410 F.2d 953 (6th Cir.
1969); Curtiss-Wright Corporation, supra. In determining
whether the information requested by the Union is rele-
vant, the general approach has been to apply a liberal
discovery type standard to the issue of relevancy in eval-
uating each case on its facts. Brazos Electric Power Coop-
erative, Inc., 241 NLRB 1016 (1979); Acme Industrial Co.,
supra. The Board has held in establishing relevancy that
the information is relevant if the information sought is
reasonably necessary in order to administer a collective-
bargaining agreement, to detect infractions of its terms,
and to counsel intelligently the employees whom it rep-
resents. In this connection, the Board has held that a
union is entitled to information requested which bears
upon the union's determination to file a grievance or is
helpful in evaluating the propriety of going to arbitra-
tion. Brooklyn Union Gas Company, supra; Vertol Division,
Boeing Company, 182 NLRB 421 (1970).
(olliver Insulated Wire. .4 Gulf and Western Svstems C,.., 192 NLRB
837 (1971)
X853
D4DECISIONS OF NATIONAL LAI3OR RELATIONS O()ARD
The facts of the instant case establish that since 1975
the Union has contended, based on its visits to the Yon-
kers, and later the White Plains, facilities, that the techni-
cians employed at these locations are performing bar-
gaining unit work. Among the reasons for this belief is
the increase in the complement of technicians from 7
technicians in 1975 to the present complement of 17-21
technicians. The information requested is clearly relevant
to the issue of whether the work on the Y.I.G.'s has
passed from the research stage to the production stage as
contended by the Union. The number of Y.I.G. units
built, tested or sold bears directly on the issue-the
greater the number in each case, the greater the likeli-
hood that the work on the Y.I.G. has reached the pro-
duction stage. With respect to the Union's request for
method sheets and manuals, the credible and uncontra-
dicted testimony of Colon establishes that Respondent's
usual practice is to print such method sheets or manuals
when a component passes from the research stage to the
production stage. Therefore the existence of such printed
material would tend to establish that the Y.I.G. compo-
nent had reached the production stage. The request for
classifications and job descriptions of all employees who
have worked on Y.I.G. units since 1952 is relevant in
order to compare the skills of unit and nonunit employ-
ees. Such comparison of skills would be relevant in es-
tablishing whether the production employees were capa-
ble of performing the work currently performed by the
technicians and therefore relevant to establish whether
such work was production work.
I conclude that such information is obviously neces-
sary for the Union to evaluate the propriety of proceed-
ing with the arbitration. Moreover, should the Union
decide to proceed to arbitration such information would
be relevant in such arbitration proceeding in support of
the Union's position.
Respondent contends that the technicians are perform-
ing the same work they performed at the time of the
election in 1977 and that the Union is attempting to ac-
crete to its bargaining that classification of employee
(technicians) the Board found by its certification it did
not represent. This issue raised by Respondent's conten-
tion is not before me, nor is it relevant to the issue pre-
sented by the complaint; namely, whether the Union is
entitled to the information requested. Respondent's con-
tention would be relevant at the arbitration proceeding
after the information requested has been turned over.
Respondent's contention that the information request-
ed contains Government secrets and is therefore confi-
dential information to which the Union is not entitled is
without merit. Respondent, never once in its periodic
meetings with the Union over this dispute since 1975 or
in its attempts since January 1979 to settle the grievance
filed by the Union, raised the contention that such infor-
mation was classified by the Government as secret. Such
contention was raised for the first time during the hear-
ing through the testimony of Gerard Voege, manager of
the test department. Such testimony, by a low-level su-
pervisory employee without any documentary evidence
submitted to support it, amounts to no more than a bold
assertion. I find that Respondent has not sustained its
burden of proof as to this contention.
Respondent also contends that, in view of a pending
arbitration, this proceeding should be deferred pursuant
to the Board's Collver policy. However, the Board has
held that unless the collective-bargaining agreement be-
tween the parties provides that the employer need not
furnish such information, and the instant collective-bar-
gaining agreement contains no such provision, union re-
quests for information are not subject to the Board's Col-
lyer policy. St. Joseph ' Hospital (Our Lady of Providence
Unit), 233 NLRB I111, 1119 (1977); Brooklyn Union Gas
Company, supra at 192. 4
Accordingly, I conclude in view of the well-estab-
lished Board precedent described above that the Union is
entitled to all the information requested in its June 20,
1979, letter as set forth in paragraph 8(a) of the com-
plaint herein, as such information is relevant to the
Union's performance of its function as the exclusive col-
lective-bargaining representative of Respondent's pro-
duction and maintenance employees. I further conclude
that Respondent by its refusal to supply such information
violated Section 8(a)(1) and (5) of the Act.
CONCI USIONS OtF .AW
1. Respondent is an employer engaged in commerce
within the meaning of Section 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. At all times material herein, the Union has been the
exclusive representative for purposes of collective bar-
gaining of the employees in the following described unit:
All production and maintenance employees, exclud-
ing office clerical employees, engineers, technicians,
draftpersons, protective employees, executives,
guards and supervisors as defined in the Act.
4. By refusing to furnish the Union with the informa-
tion requested in its letter of June 20, 1979, and de-
scribed in paragraph 8(a) of the complaint, Respondent
refused to bargain with the Union and thereby engaged
in unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and Section 2(6) and (7) of
the Act.
5. By the foregoing conduct, Respondent has inter-
fered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act,
and is thereby engaging in unfair labor practices within
the meaning of Section 8(a)(l) of the Act.
4 Respondent's molfion that the complaint herein he dismissed and that
I "refer this jurisdictional dispute pursuant to Section (Xk) of the Act to
the grievance anid arbitration procedures under the parlies' collective bar-
galling agreement" is inappropriate Sec. (Xk) of the Act pro, ides in rel-
evant part "Whelnever it is charged hat anlly person has engaged i an
unfair lahor practice within Ihe meaning of paragraph (4)(D1I f section
8(h). he Hoard is empowered and directed to hear and determine the dis-
pute out of which such unfair labor practice shall have arisen "In
the instant case there is ao unfair labor practice charge pending alleging a
iolalion lof Sec X(h)(4)(D) against the Unilon Moreover the illanlit case
is not the type of dispute encompassed h Sec (h)(4}(D) I therelire
findd that Responldent's motion is inappropriate Respondent apparently in-
ternds by such motion to seek deferral to arbitratiln pursuant to tlie par-
ties' colleclive-bargaining agreement As I hace fund above that such
deferral is inappropriate in this case, I will therefiore deny Respondent's
motion
854
LORAI I'I.EC-IR()NIC SYSI FMS
Tilt RIMFI)Y
Having found that the Respondent has committed an
unfair labor practice, I will recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the purposes
and policies of the Act. Specifically, I will recommend
that it be ordered to provide the infrmation requested of
it by the Union in its letter to Respondent dated June 20,
1979.
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record herein considered as a
whole, and pursuant to Section 10(c) of the Act, I make
the following recommended:
ORDER"
The Respondent, Loral Electronic Systems, A Divi-
sion of Loral Corporation, Bronx, New York, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to furnish Local 431, International Union
of Electrical, Radio and Machine Workers, AFL-CIO,
the Union herein, with the information specifically set
forth and contained in the Union's letter to Respondent
dated June 20, 1979, and described in paragraph 8(a) of
the complaint.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Furnish the Union in writing that information re-
quested by the Union in its June 20. 1979, letter to Re-
spondent.
(b) Post at its Bronx, New York, facilities copies of the
attached notice marked "Appendix." 6 Copies of said
I In the event no exceptions are Filed as pro ided by Sec 11246 of the
Rules and Regulaltions of the National l.ablor Relalions Hoard, the find-
ings, conclusiotns. and recommended Order herein shall, as pros ided in
Sec 102 4 of the Rules and Regulations, he adopted by the Hoard and
become its findings, conclusions, and Order. and all objections thereto
shall be deemed waived fr all prposes
6 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Po,,std by
Order of the National l.abor Relation, Board" shall read "I'osi.d I'ursu-
notice, on forms provided by the Regional Director for
Region 2, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 corn-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
Notify the Regional Director for Region 2, in writing,
within 20 days from the date of this Order, what steps
have been taken to comply herewith.
;aut to .I Juldg nllt ot lilt 1 1illnted Stats Court ofI ,ppc.,ls I11Ifl lig ;ll
)rder f' the Naliolal I aboil Reltions Itoard
APPENDIX
No rci. I'1 EMPI.OY FtIS
POS'ltl: HY ORI)I: t 1: ITHE
NAIIONAI LABOR RI A I IONS oAXRI)
An Agency of the United States Government
Wl Will NOI refuse to furnish Local 431. Inter-
national Ution of Electrical. Radio and Machine
Workers, AFt CIO, the Union herein, ~ilth hte in-
formation specifically set forth and contained in the
Union's letter to us dated June 20, 1979.
\'l. Wll I Nor in any like or related manner in-
terfere with. restrain, or coerce our employees in
the exercise of the rights guaranteed under Section
7 of the Act.
W- w III furnish the UInion in writing that infor-
mation requested by the Union in its letter to us
dated June 2(0, 1979.
LORAI EI.tCIRONIC SSII.MS, A DIvISIo1N
Of IRAI CORPORA-I ION
855