New York Air Brake Corporation

National Labor Relations Board - Administrative Judge Opinions

May 24, 2012

03-CA-028158 (N.L.R.B. May. 24, 2012)

JD–26–12
Watertown, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK AIR BRAKE CORPORATION
and Cases 03–CA–028158
03–CA–065279
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS,
AFL–CIO, DISTRICT LODGE 65, LOCAL
LODGE 761
Kevin R. Kitchen, Esq., for the General Counsel.
David M. Ferrara and Kseniyo Premo, Esqs.
(Bond, Schoeneck & King, PLLC), of Syracuse,
New York, for the Respondent.
DECISION
STATEMENT OF THE CASE
JOHN T. CLARK, Administrative Law Judge. This case was tried in Watertown, New
York on January 11, 2012. The International Association of Machinists and Aerospace Workers,
AFL–CIO, District Lodge 65, Local Lodge 761, (the Union) filed the charge in Case 03–CA–
028158 on August 25, 2011 and the charge in Case 03–CA–065279 on September 26, 2011. On
November 15, 2011 the Regional Director for Region 3 of the National Labor Relations Board
issued an order consolidating cases, consolidated complaint, and notice of hearing. The
consolidated complaint alleges that New York Air Brake Corporation (the Respondent), violated
Section 8(a)(1) and (5) of the National Labor Relations Act (the Act), by failing to provide
information in a timely manner to the Union, that is necessary for, and relevant to the Union’s
performance of its duties as the exclusive collective-bargaining representative of the employees.
The consolidated complaint also alleges that the Respondent violated the Act by making a
unilateral change in its policy regarding material that may be posted on the union bulletin boards.
The Respondent filed a timely answer to the consolidated complaint denying the essential
allegations and requesting that the complaint be dismissed.
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On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the counsel for the Acting General Counsel and the
Respondent, I make the following
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FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation, with an office and place of business 15
in Watertown, New York where it produces air brakes for use on locomotives. During the 12-
month period preceding issuance of the consolidated complaint, a representative period, the
Respondent, in conducting its business operations described above, sold and shipped from its
Watertown, New York facility goods valued in excess of $50,000 directly to points outside the
State of New York. The Respondent admits, and I find, that it is an employer engaged in 20
commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
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Beginning in the summer of 2011 the Respondent experienced a substantial increase in
orders. On June 10, 2011 (all dates are in 2011 unless otherwise specified), the Respondent
sought suggestions from the Union as to how to increase production. The unit, as described in
the complaint is:
All employees in the job classifications listed in the article on Rates of 30
Pay[Article 19] or similar job classifications within the seniority divisions under the jurisdiction
of the Union, as described in the collective-bargaining agreement between the Respondent and
the Union effective from April 10, 2010 through April 21, 2013.
In essence the Union represents all 160 production and maintenance employees at the Watertown 35
facility. The current collective-bargaining agreement is the latest of numerous successor
collective-bargaining agreements negotiated by the parties.
On June 17 Rocky Maxson and Art Gamble, president and vice president of the Union,
respectively, met with Tim Sheridan the Respondent's operations manager to discuss ways to 40
increase production. One way under discussion was a change in how employees were asked to
work overtime. Overtime is voluntary at the facility. Traditionally, if overtime work was
available in the job that the employee was assigned that employee was offered the overtime. If
the employee refused, the employee was not offered overtime in any other job. This was true
even if overtime was available in another job for which the employee was qualified. In order for 45
employees to work overtime on jobs other than the one they were assigned they had to sign an
“extra list.” The Union suggested that employees be asked it they wanted to work overtime, if
they accepted they would be assigned the overtime work even though it was not on their regular
assigned job.
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This change was immediately, and successfully, implemented. The fact that neither the 5
Respondent nor the Union explained the change to the employees resulted in Maxson receiving
several inquiries from employees. Because of the inquiries, Maxson asked Sheridan to give him
a written request to change the way overtime would be administered under the collective-
bargaining agreement. He also told Sheridan that he wanted a definite end date, in writing, for
this temporary method of selecting employees to work overtime. These requests were made on 10
June 24. Sheridan initially did not appear to oppose the requests. But on July 1 he told Maxson
that a letter would not be forthcoming because the collective-bargaining agreement did not
prohibit the Respondent from making the change.
On July 18 the Union sent a letter to Sheridan stating that the new method of soliciting15
for overtime “must be stopped immediately.” Having notified the Respondent of its position the
Union notified the unit employees by posting the following notices addressed to “Dear Brothers
and Sisters,” on the three bulletin boards in the facility dedicated solely for use by the Union.
After numerous discussions and attempts at trying to give the Company some relief in the
administration of overtime by allowing employees to work an open overtime assignment 20
on a specific bid job other than their own specific bid job, it appears that no agreement
can be reached.
Therefore, it is the Unions [sic] position as per Article 5, Section 3, #1 A-G that
employees must work overtime on their specific bid job before working an open overtime 25
assignment on any other specific bid job.
If you have any questions regarding this please see a member of the General Committee.
(GC Exh. 6.)
30
Shortly after the notices were posted, John Chatterton, the Respondent's director of operations,
told Maxson that the notices were encouraging a work stoppage. He asked Maxson to remove
them. Maxson refused and Chatterton told him that he would remove the notices if Maxson did
not. Maxson told Chatterton that he expected Chatterton to notify him before removing the
notices. Chatterton removed the notices on August 2 without any notification to the Union.35
The following day the Union filed two grievances alleging that the Respondent violated
the collective-bargaining agreement by removing the notices and changing the way overtime was
administered. Also on August 3 the Union made a request for the current extra overtime lists.
40
Shortly thereafter the Union posted another notice on the union bulletin boards. These
notices were identical to the first notices with the addition of a paragraph stating that the intent of
the notices was not to provoke or promote a work stoppage. (GC Exh. 8.) Those notices were
also removed by the Respondent.
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On August 9 the Union gave Sheridan a letter requesting a list of employees who worked
overtime outside their job classification when overtime, was available on their specific bid job.
The request also notes that the Union had not received the information requested by the union on
August 3. The request specifically informs the Respondent that the information requested in
both the August 3 and 9 letters is needed to prepare for the third step grievance meeting 50
scheduled for August 22.
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On August 15 or 16 Maxson and Sheridan had a brief conversation regarding both
information requests. When Sheridan started to explain why the Respondent was not going to
provide the information Maxson stopped him and told him to give a written response as to why
the Respondent was not going to provide the information. Sheridan questioned the relevance of
the requested information and suggested that Maxson obtain the information from the 10
employees. By letter dated August 15 Maxson put in writing his request that Sheridan provide
the Union with the written reasons why the Respondent could not provide the information
requested on August 3 and 9.
The Respondent did not provide the information requested by the Union in the August 3, 15
9, and 15 letters. It was not until October 1, in response to a request dated September 13, that the
Respondent provided the information the Union requested on August 3, 9, 15, and September 13.
III. ANALYSIS and DISCUSSION
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A. The Delay in Providing the Requested Information
An employer has a statutory obligation “to provide information that is needed by the
bargaining representative for the proper performance of its duties. NLRB v. Acme Industrial Co.,
385 U. S. 432, 435–436 (1967). This obligation extends to information in furtherance of, or 25
which would allow the union to decide whether to process a grievance. Id. at 436; Kaleida
Health, Inc., 356 NLRB No. 171, slip op. at 9 (2010). Information pertaining to employees
within the bargaining unit is presumptively relevant to a union’s representational duties,
including that necessary to decide whether to proceed with a grievance or arbitration.
Information regarding employee overtime, and specifically overtime information worked by 30
individual employees, has been found to be presumptively relevant. Blue Cross & Blue Shield of
New Jersey, 288 NLRB 434, 436 (1988) (total hours and overtime hours worked by each unit
employee is presumptively relevant).
When the union seeks information pertaining to employees within a bargaining unit, the35
information is presumptively relevant to the union’s representational duties, and the General
Counsel may establish a violation for the employer’s failure to furnish it without any further
showing of relevancy. The duty requires not only that the employer provide the information, but
that it do so in a timely manner. An employer’s unreasonable delay in furnishing information is
as much a violation of Section 8(a)(5) of the Act as a refusal to furnish the information at all. 40
[Internal quotation marks and citations omitted.] Whitesell Corp., 357 NLRB No. 97, slip op. at
43 (2011).
Thus, “[p]resumptively relevant information must be furnished on request to the
employees’ collective-bargaining representative unless the employer establishes legitimate 45
affirmative defenses to the production of the information.” Ralphs Grocery Co., 352 NLRB 128,
134 (2008) (and cited cases) reaffirmed and incorporated by reference, 355 NLRB 635 (2010).
As noted above the finding that the information request is presumptively relevant resolves the
Respondent's objections that the union did not adequately explain the relevance of the requested
information. Because the Union has no obligation to explain the relevance of the information 50
JD–26–12
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sought, any alleged deficiencies are immaterial. Commonwealth Communications, 335 NLRB 5
765, 768 (2001).
The fact that Sheridan may have advised Maxson of an alternate way of obtaining the
information does not excuse the Respondent of its statutory obligation to provide the requested
information. E.g. King Soopers, Inc., 344 NLRB 842 (2005), enfd. 476 F.3d 843 (10th Cir. 10
2007).
The Respondent argues that because Maxson told Sheridan to stop telling him the reasons
for not providing the requested information and to put them in writing the Union is the cause of a
“breakdown of communication between the parties.” The Respondent further contends that this 15
breakdown mislead the Respondent into believing that the Union had abandoned its request.
The forgoing scenario is premised on the brief conversation between Maxson and
Sheridan on August 15 or 16. According to Maxson he was alone when Sheridan entered his
office. A discussion regarding the information request ensued. Sheridan began to offer reasons20
why the information request would not be granted. Maxson “stopped the meeting short,” or cut
Sheridan off. (Tr.47–48.) He did so because he wanted the reasons in writing. The record does
not support the Respondent's argument that there was any breakdown in communication let alone
that it was attributable to Maxson telling Sheridan to put his reasons in writing. Sheridan did not
even mention Maxson’s abrupt request in his testimony. Sheridan did admit that they discussed 25
the Union’s August 9 letter. (GC Exh. 1(b).). At the beginning of that letter the Union explains
that it is making the request to prepare for the grievance meeting on August 22. Thus, Sheridan
clearly was aware of the time frame even if, as he testified, he did not believe that Maxson told
him. Sheridan also erroneously testified that there was no “time reference” in “General Counsel
Exhibit 1(b).” (Tr. 101.) That exhibit is also the Union’s August 9 letter, above.30
I find that neither case cited by the Respondent supports its argument. Postal Service,
352 NLRB 1032 (2008), is a two-member decision which has no precedential value. See, New
Process Steel, LP v. NLRB, 130 S. Ct. 2635 (2010). Good Life Beverage Co., 312 NLRB 1060
(1993), involved an information request that the Board found “had substantial and legitimate 35
confidentiality concerns,” and that the employer was entitled to discuss those concerns with the
union before surrendering the information. The Board found that it was the union’s tactics that
prevented the discussion. “Given these circumstances,” the Board found that the Respondent
“did not withhold or delay providing requested information in violation of the Act.” Id. 1061—
1062. Here there is no contention that the Union’s presumptively relevant information request 40
contains any confidentiality concerns, hence no discussion is required. What is required is that
the employer supply the information in a timely fashion. Regency Service Carts, 345 NLRB
671, 673 (2005). The Respondent also has never provided any legitimate explanation why it
took from August 3 until October 1 to compile simple lists that were routinely developed by its
supervisors. Accordingly, for the foregoing reasons I find that the Respondent unreasonably45
delayed providing the information sought by the Union’s information request, in violation of
Section 8(a)(1) and (5) of the Act.
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B. The Unilateral Change5
As set forth above, on two occasions the Respondent removed notices posted on the three
bulletin boards that had been used exclusively by the Union for at least 38 years. (Tr. 11, 24).
The bulletin boards are in enclosed locked clear glass boxes. Only the Union and the
Respondent have keys. There is no dispute that the Union has no statutory right to use the 10
bulletin boards, nor is there a provision in the collective-bargaining agreement that allows the
Union access. Counsel for the Acting General Counsel contends that the Union has obtained the
unrestricted right to use the bulletin boards as a result of past practice.
As the party alleging an established past practice, the counsel for the Acting General 15
Counsel has the burden of proof. See National Steel & Shipbuilding Co., 348 NLRB 320, 323
(2006), enfd. mem. 256 Fed. Appx. 360 (D.C. Cir. 2007). Specifically, the counsel for the
Acting General Counsel must show that the past practice occurred with such regularity and
frequency that employees could reasonably expect the “practice to continue or reoccur on a
regular and consistent basis.” Sunoco, Inc., 349 NLRB 240, 244 (2007). In addition “[i]t is 20
implicit in establishing a past practice that the party which is being asked to honor it”—here the
Respondent—“be aware of its existence.” BASF Wyandotte Corp., 278 NLRB 173, 180 (1986).
Maxson’s credited and undisputed testimony satisfies the counsel for the Acting General
Counsel’s burden. Maxson has been employed by the Respondent for approximately 38 years. 25
(Tr. 11.). During that entire time the bulletin boards have been located at both ends of the shop
and in the cafeteria. During that entire time the bulletin boards have been dedicated for
exclusive use by the Union. The Union was never told to remove a notice nor was it ever
required to have preapproval before posting a notice. I find that the counsel for the Acting
General Counsel has established as a long standing past practice of the Union’s unlimited and 30
unrestricted use of the three bulletin boards. The use of a bulletin board is a mandatory subject
of bargaining. RCN Corp., 333 NLRB 295, 310 (2001). It is well-established that an employer’s
regular and longstanding practices, even if those practices are not required by a collective-
bargaining agreement, become terms and conditions of employment that an employer may not
alter without first notifying and bargaining with the union to agreement or a good faith impasse. 35
E.g., Granite City Steel Co., 167 NLRB 310, 315 (1967).
The Respondent claims that Stevens Graphics, Inc., 339 NLRB 457 (2003), supports its
contention that the counsel for the Acting General Counsel has not established a past practice of
allowing the Union unlimited and unrestricted use of the union dedicated bulletin boards. 40
Stevens Graphics is inapposite. In that case the judge relied on the testimony of the employer’s
managers that the employer had maintained the right to limit postings of controversial matters.
The former union chairman testified that the “postings…were generally limited to notices of
meetings and changes of union representatives but no controversial material was posted by the
Union.” Id. at 461. The material posted in Stevens Graphics was an unfair labor practice charge, 45
a letter sent by a union official to the plant manager accusing a member of management of
threatening to cut off employees’ fingers and a letter alleging “creative billing.” The judge found
that these postings “clearly are controversial and inflammatory.” That finding would not be
appropriate in this case.
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Here there is no evidence of any limitations or restrictions on the parties established past 5
practice and the Union’s notice contains nothing controversial or inflammatory. Moreover, I
find that Chatterton’s “view” that the notice was meant to encourage a work stoppage is self-
serving and disingenuous. The notice merely sets out the union position on the overtime issue.
The notice is written in the same tone and tenor as the provisions contained in the overtime
article of the collective-bargaining agreement. (GC Exh. 2 at 11.) The notice contains no heated 10
rhetoric or hyperbole. Shortly after Chatterton’s “view” was made known, the Union posted a
second notice that contained an unambiguous disclaimer of any intention to provoke or promote
a work stoppage. The Respondent removed that notice as well.
Based on the foregoing I find that the Respondent on August 2, 2011 unilaterally changed 15
the past practice that existed regarding the bulletin boards that were dedicated to the Union. I
further that the counsel for the Acting General Counsel has established that this change is
material, substantial, and significant. See, e.g. Crittenton Hospital, 342 NLRB 686, 686 (2004).
Because the Respondent made the change without giving the Union an opportunity to bargain I
find that the Respondent violated Section 8(a)(1) and (5) of the Act.20
CONCLUSIONS OF LAW
1. The Respondent, is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.25
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) and (5) of the Act when it unreasonably
delayed providing the information sought by the Union’s August 3, 9, 15 and September 13 30
information requests. The requested information was necessary for and relevant to the
performance of the Union’s duties as the exclusive collective-bargaining representative of
employees in the following appropriate unit:
All employees in the job classifications listed in the article on Rates of Pay[Article 19] of 35
similar job classifications within the seniority divisions under the jurisdiction of the
Union, as described in the collective-bargaining agreement between Respondent and the
Union effective from April 10, 2010 through April 21, 2013.
4. The Respondent violated Section 8(a)(1) and (5) of the Act when it unilaterally 40
changed the past practice regarding the use and posting of items on the Union’s dedicated
bulletin boards without giving the Union an opportunity to bargain over the change.
REMEDY
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Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act. I shall also recommend, as requested by the counsel for the Acting
General Counsel, that on request of the Union the Respondent shall meet and bargain in good
faith over the use and posting of items in the union bulletin boards.50
JD–26–12
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On these findings of fact and conclusions of law and on the entire record, I issue the 5
following recommended1
ORDER
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The Respondent, New York Air Brake Corporation, Watertown, New York, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
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(a) Unreasonably delaying the provision of information requested by the Union that is
relevant and necessary for the Union to perform its duties as the exclusive collective-bargaining
representative of unit employees.
(b) Making unilaterally changes regarding the use and posting of items on the Union’s 20
dedicated bulletin boards without giving the Union an opportunity to bargain over any change.
(c) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
25
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) On request, meet and bargain with the Union over the use and posting of items on the
union bulletin boards.
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(b) Within 14 days after service by the Region, post at its facility in Watertown, New
York copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms
provided by the Regional Director for Region 3, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where notices to employees are customarily 35
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 Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these 40
proceedings, 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

1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
2 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
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all current employees and former employees employed by the Respondent at any time since 5
August 3, 2011.
(c) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.10
Dated, Washington, D.C. May 24, 2012.
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____________________
JOHN T. CLARK
Administrative Law Judge
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JD–26–12
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APPENDIX
10
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government15
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO20
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.25
WE WILL NOT unreasonably delay providing information requested by the Union that is
relevant and necessary for the Union to perform its duties as the exclusive collective-bargaining
representative of the employees in the following appropriate unit:30
All employees in the job classifications listed in the article on Rates of Pay[Article 19] of
similar job classifications within the seniority divisions under the jurisdiction of the
Union, as described in the collective-bargaining agreement between Respondent and the
Union effective from April 10, 2010 through April 21, 2013.
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WE WILL NOT unilaterally change the past practice regarding the use and posting of items on
the union’s dedicated bulletin boards without giving the Union an opportunity to bargain over the
change.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the 40
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, on request, meet and bargain with the Union over the use and posting of items on the
union bulletin boards.
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NEW YORK AIR BRAKE CORPORATION
(Employer)
JD–26–12
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Dated By
(Representative) (Title)
5
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.10
Niagara Center Building., 130 S. Elmwood Avenue, Suite 630, Buffalo, NY 14202-2387
(716) 551-4931, Hours: 8:30 a.m. to 5 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS15
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (716) 551-4946.
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