Remington Arms, Co., Inc.

National Labor Relations Board - Board Decisions

Apr 20, 1990

298 N.L.R.B. 266 (N.L.R.B. 1990)

266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Remington Arms Company, Inc. and Employees'
Mutual Association of Ilion , Inc. Case 3-CA-
15016
April 20, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On November 2, 1989, Administrative Law
Judge Joel P. Biblowitz issued the attached deci-
sion. The Charging Party filed exceptions, a sup-
porting brief, and an answering brief, the Respond-
ent filed cross-exceptions, a supporting brief, and
an answering brief, and the General Counsel filed
with the Board his brief to the judge.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge' s rulings, findings,' and
conclusions2 and to adopt the recommended
Order. 3
1 No exceptions were filed to the judge 's finding that the Respondent
violated Sec 8(a)(5) and (1) of the Act by unilaterally implementing its
"return rights" proposal without having served notice on the Federal
Mediation and Conciliation Service and the New York State Mediation
Service as required by Sec 8(d)(3). In adopting the judge 's finding, we
note, however, contrary to the Union's contention, that the return rights
proposal constitutes a mandatory subject of bargaining.
The proposal , offered by the Respondent as an addition to the contrac-
tual seniority provisions , provided for the filling of unit jobs by supervi-
sors applying to return to employee positions in the unit , and, as evi-
denced by the parties ' discussions about the proposal, involved such
issues as the calculation of seniority for the returning supervisors, their
wage rates , the bidding procedure to be utilized , and the relative rights of
returning supervisors and employees on layoff Such issues clearly pertain
to "wages, hours , and other terms and conditions of employment ," as de-
fined in Sec 8(d), and thus have such a substantial impact on the bargain-
ing unit as to make the return rights proposal a mandatory subject of bar-
gaining. Cf Pittsburgh Metal Processing Co, 286 NLRB 734 (1987).
The judge found that eight employees responded to the Union's re-
quest for notes received pursuant to the Respondent's disability policy
The record reflects that five employees responded . The judge 's inadvert-
ent error is insufficient to affect the result
2 In his Conclusions of Law the judge incorrectly described the con-
tractual unit for bargaining The correct unit description , as set forth in
the collective-bargaining agreement, is
All the employees of the Ilion Plant, excluding salaried employees
exempt under the hours provisions of the Fair Labor Standards Act;
Methods & Standards Engineers , secretarial employees regularly as-
signed to handle confidential work for the Plant Manager , Assistant
Plant Manager , Special Assistants to the Plant Manager ; Section
Heads, Technical Division Manager and his staff, also excluding
Plant Guards and all Supervisory employees and others with author-
ity to hire , discharge , promote, transfer or otherwise effect changes
in status of employees or effectively recommend such action.
a As a result of its unlawful implementation of the return rights propos-
al, the judge ordered the Respondent to make its employees whole for
any losses they may have suffered , pursuant to the Board's "usual back-
pay rules" as noted in the remedy section of his decision . We note, spe-
cifically, that employees shall be made whole with interest to be comput-
ed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289
( 1950), and New Horizons for the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Remington
Arms Company, Inc., Ilion, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Alfred M. Norek, Esq., for the General Counsel.
Hastings S. Trigg Jr., Esq., for the Respondent.
James LaVaute, Esq. (Blitman & King), for the Charging
Party.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOwITZ, Administrative Law Judge. This
case was heard by me in Albany, New York, on Septem-
ber 5 and 6, 1989.1 The complaint and notice of hearing
issued on July 19 and was based on an unfair labor prac-
tice charge filed on June 5 by Employees' Mutual Asso-
ciation of Ilion , Inc. (the Union). The complaint alleges
that Remington Arms Company, Inc. (the Respondent)
violated Sections 8(a)(1) and (5) and 8(d) of the Act in
the following manner:
(a) On about May 26, instituted and implemented a
modification of the existing agreement between Respond-
ent and the Union, without prior notice having been
served upon the Federal Mediation and Conciliation
Service (FMCS) and the New York State Mediation
Service (this much Respondent admits), and notwith-
standing that prior thereto a written notice of such modi-
fication had not been served on the Union and notwith-
standing that there was no impasse in existence at the
time; and
(b) Since about April 10 and 18, Respondent has failed
and refused to provide the Union with requested infor-
mation, which information is necessary for, and relevant
to, the Union's performance of its function as the collec-
tive-bargaining representative of the employees in the
unit.
On the entire record, including my observation of the
witnesses and the briefs received from the parties, I make
the following
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION STATUS
There being no dispute, I find that Respondent is an
employer engaged in 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. THE FACTS
The Union (unaffiliated) has represented certain of Re-
spondent's employees at its Ilion, New York plant (the
1 Unless indicated otherwise , all dates referred to here relate to the
year 1989.
298 NLRB No. 35
REMINGTON ARMS CO. 267
facility) for about 40 - years. The appropriate unit is all
full-time and regular part-time production, maintenance,
and clerical employees employed by the Respondent at
the Ilion facility; excluding guards and supervisors as de-
fined in the Act.
Over the last 15 years, the number of employees in the
unit has ranged from a low of 800 to a high of over
2000. At the time of the hearing, the unit size numbered
about 1300. The contract contains no union-security
clause.
The issue generating the instant proceeding was the
Respondent's desire to promote employees from the bar-
gaining unit while maintaining the right to return them
to the unit, whether at Respondent's initiative or the em-
ployee's initiative. This desire of Respondent, called
return rights, resulted in the Temporary Supervisors
Agreement, executed by the parties on December 15,
1987. This 'agreement was to be effective for 6 months,
from January 4 to July 4, 1988, and provided certain
rules for promoting employees from unit to supervisory
positions, and then returning them to unit positions.
Without going into detail, supervisors returning to the
unit do so with only their pre-supervisory seniority time,
but regain the supervisory time after being back in a unit
position for 1 year. Additionally, for every employee re-
moved from the unit and made a temporary supervision,
Respondent had to hire an additional bargaining unit em-
ployee.
By letter dated June 8, 1988 , to Don VanValkenburgh,
president of the Union, David Albrecht, Respondent's
employee relations superintendent, wrote inter alia:
Management has requested that we and the EMA
entertain bargaining around the possible extension
of the current "Temporary Resource" agreement or
a permanent agreement concerning this topic. The
EMA seems reluctant to meet on this topic, as wit-
#essed by the cancellation of at least two scheduled
meetings.
Management feels that you must understand our
exact intentions, in that we feel the Temporary Re-
source program must continue and Management
must have the right to promote people from the
bargaining-unit to Management positions, and then
have the ability to place these people back in the
bargaining-unit for reasons that make sense to em-
ployees and it business needs.
If the Union continues to avoid meeting on this
topic, Management will be left with no other alter-
native than to pursue our concern relative to this
topic during upcoming Contract Negotiations.
Management would prefer to agree to an exten-
sion to our current Temporary Resource agreement,
which would allow both parties the opportunity to
continue discussions outside of the 1988 Contract
Negotiations.
Management would encourage your group to
make themselves available to discuss this important
topic, in the very near future.
The parties met in mid-June to discuss Respondent's
request; at this meeting Albrecht requested that the
agreement be extended and that in the upcoming negotia-
tions the parties could discuss a permanent system of
return rights. To support its need, Albrecht said that
they already had two people from the temporary super-
visor group who said that they wanted to return to the
unit. Albrecht also said that another reason they needed
the right was that some individuals who are promoted to
a supervisory position do not work out satisfactorily, and
Respondent wanted to be able to return these individuals
to the unit, rather than terminate them. John Hickey,
who is employed by Respondent and is the Union's re-
cording secretary, testified that at this meeting, John
Winske, Respondent's plant manager, said that he had a
list of people whom he wanted to return to the unit and
that he had people who were making $50,000 a year who
weren't living up to Respondent's expectations; he asked:
"What am I supposed to do, just keep paying them?" Al-
brecht testified that he only recalls a general discussion
of supervisors that may not work out, not any salary
figure. By letter dated June 27, 1988, VanValkenburgh
wrote to Winske:
As a result of discussions held between the
E.M.A. and Management , the Union has arrived at
their decision on the Temporary Supervisors Pro-
grain-
The original Agreement, which was signed on
December 15, 1987, stated that the agreement wond
begin on January 4, 1988, and end on July 4, 1988.
The E.M.A. believes that a 6 month trial period
is sufficient time to determine the effectiveness of
the program and should have allowed the Company
an opportunity to make permanent Supervisors, if
the need truly existed.
Therefore, it is the decision of the Union not to
extend the current Temporary Supervisors Agree-
ment.
The last collective-bargaining agreement between the
parties provides as follows:
This agreement shall continue in full force and
effect until August 31, 1988, and from year to year
thereafter for twelve (12) month period unless, at
least sixty (60) days prior to an expiration date,
either party notifies the other in writing of its desire
to terminate this agreement, in which event the
Agreement shall terminate on the expiration date of
the contract term in which the notice is given.
If either party desires to modify or change this
Agreement at any expiration date, it shall, at least
sixty (60) .days prior to such date, give notice in
writing of the desire to modify or change.
By letter dated June 24, 1988, VanValkenburgh wrote
to Winske that pursuant to the above-mentioned contrac-
tual provision: "The purpose of this letter is to inform
you that the Union has no desire or intention to modify
or terminate our current Collective Bargaining Agree-
ment." By letter dated June 29, 1988, Winske wrote to
VanValkenburgh that in accordance with the above pro-
vision "be advised that management desires to terminate
the current agreement" and that Albrecht would contact
268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Union to arrange the schedule for negotiations. Nei-
ther Respondent nor the Union ever notified FMCS or
the New York State Mediation Service of their desire to
terminate or modify the agreement.
There were 15 negotiating sessions conducted between
August 2, 1988, and April 27. At all the bargaining ses-
sions, the chief spokespersons for the Union were Van-
Valkenburgh and Hickey and for Respondent it was Al-
brecht, with the exception of one meeting when he was
absent. At the first meeting, the ground rules for the ne-
gotiations were discussed. Hickey testified that, in addi-
tion, Respondent gave the Union a preliminary draft of
the return rights proposed. By letter dated July 19, 1988,
Respondent sent the Union its proposal on return rights.
It is labeled as "Draft, For Discussion Purposes Only,
Proposed Contractual Language," and states:
ARTICLE VII, SECTION 8
Employees who have prior service in the bar-
gaining unit and who are in excluded jobs as of
September 1, 1988, and bargaining unit employees
who, on or after September 1, 1988, accept ex-
cluded jobs, may be placed on jobs within the bar-
gaining unit, provided the employee being placed
has a seniority date, as calculated under Section 1 of
this Article, greater than that of the most senior em-
ployee on the active recall list. Initial job placement
will be to open jobs which have not been selected
by incumbent bargaining unit employees following
established job filling practices.
Albrecht testified that at the second meeting, they told
the Union that they needed a mechanism to permit them
to take people from the bargaining unit knowing that, if
need be (whether because they weren't properly per-
forming their job, there was an excess of supervisors or
if the employee asked to return) they could return them
to the unit. They then informed the Union of the me-
chanics of their proposal; there were two groups of em-
ployees involved: those out of the unit with prior unit
service and those in the unit on the effective date who,
at a subsequent time, were promoted out of the unit.
Both groups would have return rights, but only to jobs
that had gone through the job posting and bidding pro-
cedure for unit jobs and at the pay scale offered for that
job. Hickey testified, as well, that Respondent stated that
its proposal covered two groups: those who were al-
ready supervisors and those who became supervisors
after September 1, 1988; both would be eligible to return.
Additionally, Hickey testified that the union representa-
tives objected to the written proposal being titled:
"Draft"; "We reiterated that we didn't want to work
from a draft, but would rather have the actual proposal
in front of us." Hickey also testified on cross-examination
(although very reluctantly) that Winske told them that
they needed this provision because of a moral obligation
to people who were promoted out of the unit to return,
if need be.
The third session on August 18, 1988, was also attend-
ed by Fred Murad, attorney for the Union. At this meet-
ing, the Union asked for a list of all those who manage-
ment considered eligible to return to the unit and Re-
spondent stated that they would supply the Union with
such a list. Albrecht reviewed the return rights proposal.
Murad asked how seniority would be computed: if an
employee was in the unit for one week and out of the
unit for 25 years, what would his seniority be when he
returned? Albrecht said 25 years and one week as senior-
ity is measured by service with Respondent. Murad also
asked how a_former supervisor could work with an em-
ployee he had once disciplined, and how long it would
take a person to prove that he would be a good manag-
er. The Union asked why they needed the proposal and
Albrecht said that they needed flexibility to handle tem-
porary situations. The Union asked if people could be re-
turned to the unit while others were on layoff. They re-
sponded that anyone being returned would have to have
more seniority than those on Respondent's recall list. At
the conclusion of this meeting, the Union was given a
copy of Respondent's return rights proposal with the
word "Draft" omitted.
The fourth session, again with Murad present, took
place on August 30. At the commencement of the meet-
ing, Respondent gave the Union a list of those eligible
under the return rights proposal. It listed the individual's
name , the amount of service with Respondent, present
status, when they left the bargaining unit, and whether
they were exempt or nonexempt excluded;2 this list in-
cluded Albrecht, Winske, and Robert Lyman, Respond-
ent's employee relations specialist. The union representa-
tives said that they needed more time to examine the list,
but there appeared to be some discrepancies. Respondent
agreed to reexamine the list to look for errors. Murad
then said that he was speaking for the Union, and that
they objected to the return rights proposal and they
would not discuss it any further unless Respondent pre-
pared a counterproposal; the Union did not offer a coun-
terproposal at this meeting.3 On about September 7,
1988, Respondent provided the Union with a corrected
list of individuals eligible for return rights. The fifth
meeting occurred on September 22, 1988, this time with-
out Murad. At this meeting, Hickey said that the Union
was retracting Murad's statement and that they were
willing to discuss Respondent 's management-rights pro-
posal at any time. At the following meeting, conducted
on September 28, 1988, the Union questioned some of
the dates on the revised list of those eligible for return
rights.
The seventh meeting took place on October 20; it was
at this meeting that the Union first asked for the person-
nel records, including wage rates and disciplinary
records of all employees eligible under the return rights
2 "Exempt" refers to those individuals who are exempt under the Fair
Labor Standards Act. "Excluded" are those who are excluded from the
unit, so that a first level supervisor would be nonexempt excluded.
8 That Murad said that they were not willing to discuss Respondent's.
proposal any further was testified to by Albrecht and by Hickey, on
cross-examination. On direct examination , Hickey testified that Murad
said that they would "turn the proposal down as written. If you have an
alternative to offer, then we would consider it We are not going to make
a counterproposal. If you have another proposal you would like us to
consider, we will." He testified that when Albrecht asked Murad wheth-
er he was saying that the Union wasn't interested in discussing their pro-
posal, Murad said "We will discuss anything."
REMINGTON ARMS CO. 269
provision . 4 Albrecht told the union representatives that
Respondent would not supply the Union with the re-
quested information at the time ; however, "...we
would consider sharing information once we had identi-
fied someone to go back into the unit ." The Union also
requested a list of those individuals who Respondent in-
tended to return to the unit . Hickey testified that at the
prior meeting, Winske said that he had a list of people he
planned to move back . Albrecht said that he would look
into that, and at the conclusion of the meeting , he asked
Winske if he had a list of individuals who he planned to
return to the unit if they reached agreement with the
Union on return rights. Winske said that there was no
such list and Albrecht so informed the Union at the next
meeting . At the October 20 meeting , the Union, also
asked how often a person could be moved in and out of
the unit and if there was a minimum amount of time he
had to remain. Albrecht responded to these questions at
either this meeting or the next that there was no limit on
the number of times an individual can be moved in and
out of the unit . The Union asked about layoffs and Re-
spondent 's representatives said that they had no intention
of giving excluded personnel preferential treatment. The
Union then asked what rate of pay the individual would
receive upon returning to the unit; this was responded to
at a subsequent meeting . The Union then asked how
management felt the returning supervisors would be
treated by nonfellow workers whom they may have dis-
ciplined as supervisors . Albrecht answered that he hoped
they would get along once they returned to the unit. At
this meeting , Respondent gave the Union a corrected list
of those eligible to return to the wait.
The eighth bargaining session took place on November
9; Albrecht said that Respondent was working on nar-
rowing the list of individuals eligible for return rights
and compiling the additional information requested by
the Union . In answer to the question asked at the prior
meeting , Albrecht said that because of Respondent's
need for flexibility there was no limit on the number of
times an individual could transfer in and out of the unit
and no ' minimum time required for each stay. However,
because of the restrictions in their proposal that an indi-
vidual could only be placed into an open job subject to
posting and bidding , as a practical matter it would not be
in the best interest of Respondent or the individual to
keep transferring in and out, because proper positions
wouldn't always be available . The union representatives
then expressed concern about Respondent transferring
people to the unit during a period of layoffs ; Albrecht
responded that they had no intention of doing so during
an excess layoff situation . Albrecht next repeated his re-
sponse of the prior meeting regarding the request for the
personnel records of those eligible to return; he said that
this requested information was not pertinent to the return
rights proposal and Respondent would not share it. At
the time an individual was returning to the unit, if he
consented , Respondent would provide the information at
that time. The Union did not respond to this. The Union
then asked if there would be a carryover of discipline
4 This Issue, together with the Union's alleged need for this informa-
tion, will be discussed more fully, infra
from outside to inside the unit for returning individuals.
Albrecht said that there would be no carryover-"That
and discipline that took place while an employee was
outside of the unit was our business , not theirs, and it
had no bearing on what would happen to that employee
when they went back into the unit." The 9th and 10th
bargaining sessions , on January 19 and February 7 were
devoted principally to other topics . At the following ses-
sion on February 23, Albrecht stated that they had been
meeting since August 1988 with plenty of time to discuss
Respondent 's proposals ; they had been discussing return
rights since 1987 and , during the current negotiations, the
Union never even presented a counterproposal on the
subject; the union representatives said that they could
not present a counterproposal without some of the infor-
mation they had requested . At the next meeting on
March 27 , the union representatives said that that they
considered return rights a nonmandatory subject of bar-
gaining because it involves supervisors and that if Re-
spondent removed the return rights proposal from their
package offer, the Union would submit their package to
their membership . Respondent said that they would not
do so. At the next meeting on March 30 , Respondent's
representatives stated that they would not alter their
return rights proposal since the Union never presented a
counterproposal; the Union stated that they would not
present Respondent's package proposal to their member-
ship.
The next meeting took place on April 18; at this time
the Union repeated its request for pay information and
all disciplinary ' warnings for all those eligible under the
return rights program . This was the first time since Oc-
tober 20 , 1988 , that the Union had requested this infor-
mation . Albrecht said that the information was not perti-
nent or relevant to the bargaining unit, but that Respond-
ent would consider sharing pertinent information with
the Union when the employee was returned to the unit,
with the employee's consent. Hickey testified that Mi-
chael DeRocco, the Union's legal secretary , then asked
whether disciplinary notes would be carried over from
bargaining unit to nonbargaining unit , and whether Re-
spondent would turn over such notes to the Union when
an individual returned to the unit . Albrecht said that he
didn't know, but be would answer that question at a sub-
sequent time. DeRocco said that they needed the em-
ployees' history to properly represent them . VanValken-
burgh then said that absent the return rights provision,
the Union was willing to sign the proposed agreement.
At the final session on April 27, Albrecht said that in
answer to the Union's question at the prior meeting, their
position remained the same-they would not be willing
to share any information placed in the employee's file
while he was out of the unit . Information , including dis-
ciplinary notes from a prior period when he was in the
unit , which was pertinent , they would be willing to share
with the employee's consent, when the employee re-
turned to the unit.
In addition to the above testimony regarding the dis-
cussions at the negotiating sessions on the subject of
return rights, there was some general testimony on the
subject . Hickey testified that one of the difficulties the
270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Union had with this proposal is that Respondent's repre-
sentatives told them that there was no minimum amount
of time required to be spent in the unit and no maximum
number of moves allowed under the proposal. However,
on cross-examination, Hickey testified that under the
proposal, returning employees could only move into
open jobs that were subject to bidding and seniority
rules. He also testified that another difficulty the Union
had with the proposal was that some of the returning in-
dividuals may have carried out disciplinary action
against employees while they were supervisors; as the
Union was the collective-bargaining representative of the
unit employees: "It would have been difficult for the
union to provide fair representation to an individual who
had carried out anti-union activity." A still further diffi-
culty was that the Union felt that this provision would
require it to bargain for people outside the unit, and
placed the Union in a gray area between mandatory and
nonmandatory subjects of bargaining. Hickey also testi-
fied that Respondent informed them that they needed
return rights to respond to business needs and that at the
initial meeting in June where Respondent requested the
Union agree to an extension of the Temporary Supervi-
sors Agreement, Winske told them that he needed these
rights so that Respondent would not have to lay off su-
pervisors, when there was a need to reduce the number
of supervisors. Finally, 'Hickey testified (although very
reluctantly) that during these discussions, Winske said
that, in good conscience, he did not feel comfortable
promoting people out of the unit when there was no
path back into it, and that Respondent had a moral obli-
gation to these people.
At a meeting held on May 26, Lyman informed Van-
Valkenburgh and Hickey that on May 30, two supervi-
sors, Dawson Davis and Juan Butera, would be put back
into the unit. By letter to Respondent dated May 26,
VanValkenburgh wrote:
Earlier today you informed Mr. Hickey and
myself that on Tuesday, May 30th, management in-
tended to return two (2) individuals to the Bargain-
ing Unit. As you are fully aware, Remington's abili-
ty to take such action has been an issue of such dis-
cussion at our on-going collective bargaining nego-
tiations. Remington Arms vigorously sought to
obtain authority for such actions during these nego-
tiations. Currently, of course, Remington does not
have this authority, nor has any impasse been
reached on this issue at the on-going negotiations.
Therefore, on behalf of the Employees Mutual
Association of Ilion, Inc., I am hereby objecting to
your decision to place two (2) non-bargaining unit
personnel back into the Bargaining Unit. You are
also hereby notified that the E.M.A. regards the in-
tended action as a violation of the Contract and the
National Labor Relations Act.
Should Remington go forward with the action of
which you informed Mr. Hickey and myself, the
E.M.A. will take all appropriate legal action.
On May 30, Dawson and Butera were transferred to
unit positions; Butera was placed in an open unit position
pursuant to the Respondent's return rights proposal-the
position had been posted and nobody else had bid for the
position. Hickey testified that the job, that Dawson
moved into had been posted with no bidders, but had
been promised to another employee with a medical dis-
ability. Three weeks later, Dawson was the successful
bidder on another job and transferred to another unit po-
sition; the contract between the parties provides that an
employee who successfully bids on a job has to wait at
least a year before bidding again.
As stated, supra, it was at the October 20, 1988 meet-
ing that the Union initially asked for the wage rates and
attendance and disciplinary records for all excluded em-
ployees who were eligible under the return rights pro-
posal; this information request covered the periods while
the individuals were both in and out of the unit. The par-
ties agree that this involved approximately 120 individ-
uals. Respondent initially rejected this request at the Oc-
tober 20 meeting and more formally rejected it at the
next meeting, stating that they would consider turning
over some of this information, that was pertinent to
while the employee was in the unit, with the employees
consent, at the time the employee returned to the unit.
The next time the Union repeated this request was the 14
session conducted on April 18; Respondent's response
was the same at that time. Their position in both October
and November 1988, as well as in April, was that the
salary and attendance records of the individuals while
they were outside the unit was not pertinent and there-
fore would not be provided. When an employee was
about to join the unit, information of this nature, while
he was previously in the unit, would be provided, with
his consent. Disciplinary information while the individual
was employed outside the unit would not be provided
because there would be no carryover discipline. If an in-
dividual was to be returned to the unit, any disciplinary
information for that employee while he was previously
in the unit would be given, with the employee's consent.
There is a substantial amount of testimony from
Hickey in an attempt to establish that this information
was relevant to the Union as the collective-bargaining
representative of certain of Respondent's employees. He
testified that the Union "needed" all of this information;
the principal reason he expressed was an alleged differ-
ence to Respondent of unit costs and nonunit costs. The
Union was concerned that if Respondent "dumped"
some of its "dead wood" into the unit from an exempt
position, unit costs would go up and look bad while non-
unit costs would drop and look good. Hickey testified:
They decide to move 20 back into the unit at one
time. There are 20 additional bargaining unit jobs.
Management costs have now decreased. Labor costs
to build that gun have increased. That's why we
said this could make us look bad. You're already
telling us that labor costs are too high. There would
be 20 less managers making half of what they were
making previously,5 and the additional costs would
5 Hickey testified that Winske had told the Union that he had supervi-
sors who were making $50,000 a year who weren't doing their job. He
testified that the open jobs that these individuals would return to paid be-
tween $20,000 and $25,000 a year on an hourly basis
REMINGTON ARMS CO. 271
come out of the labor side, not the management
side. -
Albrecht testified that at one of the meetings the
Union advanced this argument in support of its demand
for the information. Respondent's representatives ques-
tioned how the information sought would assist the
Union and Lyman asked if there was any other reason
for the request. Ken Pokorny, the union treasurer, an-
swered: "Oh, we are just nosy." Albrecht testified fur-
ther that their proposal and the mechanism supporting it:
had no bearing on what an employee did while they
were outside the unit, what job they held, what rate
of pay or salary they had, how their performance
was out there; that we were simply going to place
people back into the unit on an open job and that
the placement had nothing to do with the informa-
tion that they were requesting.
An additional factor testified to by Hickey to establish
the relevance of this information was that:
if an individual had a bad record outside the unit,
that that record not follow him along once in the
unit. Once the person came into the unit we .. .
had to represent them. [If the employee was termi-
nated] we would have to represent him, union
member or not, and it could be costly.
Respondent's answer to this is that there would be no
carryover under their proposal.
The other request four information whose denial is al-
leged as a violation was made by letter dated April 10 of
VanValkenburgh to Winske:
Since January 1, 1989, it appears that the Compa-
ny has taken a new approach regarding disciplinary
action against employees who miss time due to ill-
ness or injury.
I am therefore requesting that you furnish me
with any documents (notes or Records of Inter-
view), which have been given to employees who
have missed time and were paid under our Disabil-
ity Wage Plan. These documents should cover the
period from January 1, 1989, up to the present time.
I would appreciate receiving these documents by
April 20, 1989.
Albrecht responded to this request with a letter to
VanValkenburgh dated April 21:
Your letter of April 10, 1989, has been referred
to me for response.
Your' request for "any documents (notes or
Records of Interview), which have been given to
employees," must be denied. Personal files of em-
ployees are confidential and open only to the em-
ployee, his/her supervision, [sic] and the Employee
Relations section. The exception to this is if an em-
ployee specifically requests that the Union be given
a copy of an item in his/her personal file.
Respondent's Disability Wage Plan provides full pay
for an employee who is absent due to sickness or injury,
for a period of up to 6 months. Hickey testified that the
Union had received a number of complaints from em-
ployees saying that they had been given oral or written
warnings for being absent on three occasions during a
12-month period. The Union determined that this was
not the normal practice and that Respondent had
changed its disciplinary policy in this regard. The Union
made the April 10 request in order to determine whether
Respondent's policy toward its Disciplinary Wage Plan
had changed. The contract does contain a grievance pro-
cedure and the affected employees could have filed
grievances regarding' these warnings. Hickey testified,
however, that a lot of employees do not like to file
grievances and the Union felt that the better way would
-be to make a blanket request for the information from
Respondent. Subsequent to receiving Albrecht's, letter
dated April 21, the Union posted a "President's Mes-
sage" on it bulletin board from May 8 through 20 at the
facility, containing, inter alia, the following:
I need your help. We are all aware that the Com-
pany has changed their Disability policy, and they
are handing out notes and Records of Interview in
record numbers. The Union has brought this matter
to the attention of our Attorney, and he has re-
quested some additional information. If you have re-
ceived a note or a Record of Interview for absen-
teeism, since the 1st of the year, please see your
Foreman and request a copy. I would, then ask you
to turn that copy over to your Area Steward or any
Executive Committee member, and it will be for-
warded to the Union Attorney. I do appreciate
your cooperation.
The Union received responses and information from
eight employees as a -result of this posting.
Albrecht testified that there was a longstanding prac-
tice at the facility (although not a part of the collective-
bargaining agreement between the parties) that when the
Union requests access to an employee's records, the em-
ployee signs a form consenting to the release of the in-
formation. He testified that to his knowledge, the only
time that Respondent released such information to the
Union was upon receiving such a signed consent form
unless the employee was present when the request was
made and orally consented. Lyman, who had been presi-
dent and a steward for the Union, testified that in 1977,
when he was union secretary, he established the consent
form because, prior to that, Respondent was reluctant to
give the Union information from employees' files, even
for pending grievances or arbitrations. Respondent intro-
duced into evidence four such consent forms signed (ap-
parently) by employees and stated between January 1984
and August 1989.
Michael DeRocco, the Union's legal secretary, is re-
sponsible for collecting the records for upcoming griev-
ances and arbitrations. He testified that he obtains the
disciplinary notes (called ROIs, records of interview)
from Lyman or the supervisor involved. On those occa-
sions when he obtained the ROI from Lyman, he told
272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
him of the pending grievance or arbitration and Lyman
made a copy of the ROI and gave it to him. As to
whether he first gave Lyman a consent form, he testified:
"Years ago, I did. To tell you the truth, I can't remem-
ber the last time I signed a consent form." DeRocco tes-
tified to two specific situations in 1988 and 1989; employ-
ees had been terminated and arbitrations were scheduled.
He told Lyman that he needed the ROIs because of the
pending cases and Lyman made copies and gave them to
him without any consent form . On cross-examination,
DeRocco testified that in the 1988 incident he does not
recall Lyman requesting a consent form immediately, or
one to be delivered at a subsequent time, when he re-
quested the ROI. When he made the request for the ROI
in 1989, Lyman did not mention the consent form.
Lyman testified that he does not have a vivid recollec-
tion of the 1988 incident testified to by DeRocco, but
that he was in the habit of always requesting the consent
form. As for the 1989 request, DeRocco asked him for
copies of the employees' personnel file, including ROIs;
Lyman asked him for the consent form and DeRocco
said that he didn't have it, but he would have one signed
when he met with the employees. Lyman gave him the
requested information and told him to leave the consent
form at his office. Lyman testified that he has no knowl-
edge whether DeRocco ever delivered such a form to
his office and he never investigated to determine wheth-
er it had been supplied by DeRocco.
Analysis
Admittedly, Respondent failed to notify FMCS or the
New York State Mediation Service , as required by Sec-
tion 8(d)(3) of the Act , of its intention to modify the ex-
isting agreement . Failure to do so precludes an employer
from changing terms and conditions of employment.
Weathercraft Co. of Toneka, 276 NLRB 452 (1985). On
May 26, Respondent informed the Union that it would
implement its return rights proposal by returning
Dawson and Butera to the unit, and it did so on May 30.
It therefore violated Section 8(a)(1) and (5) and Section
8(d) of the Act.
The Union made two requests for information from
Respondent : on October 20, 1988, and again on April 18,
the Union requested Respondent to provide it with the
wage rates, attendance, and disciplinary records for all
excluded employees who were eligible under Respond-
ent's return rights proposal . The other request, made by
letter dated April 10 , was for notes or ROIs given to em-
ployees under Respondent's Disability Wage Plan. Nei-
ther of these requests were complied with by Respond-
ent.
In Sheraton Hartford Hotel, 289 NLRB 463 (1988), the
Board set forth the rule to be applied in situations such
as the instant matter , citing NLRB v. Acme Industrial
Co., 385 U.S. 432 ( 1967), as well as Pfizerr. Inc., 268
NLRB 916 (1984) (cited by counsel for General Coun-
sel), the Board stated:
Section 8(a)(5) obligates an employer to provide
a union requested information if there is a probabili-
ty that the information would be relevant to the
union in fulfilling its statutory duties as bargaining
representative. Where the requested information
concerns wage rates, job descriptions, and other in-
formation pertaining to employees within the bar-
gaining unit , the information is presumptively rele-
vant. Where the information does not concern mat-
ters pertaining to the bargaining unit, the union
must show that the information is relevant. When
the requested information does not pertain to mat-
ters related to the bargaining unit, to satisfy the
burden of showing relevance, the union must offer
more than mere suspicion for it to be entitled to the
information.
The Union attempts to justify the October 20, 1988
and April 18 request on two grounds; one is that if an
individual returning to the unit had a poor record while
an excluded employee, the Union would have to repre-
sent him while he was in the unit, and this could be
costly for the Union. In addition to the fact that Re-
spondent assured the Union that there would be no car-
ryover of discipline from excluded to unit status, the ar-
gument that individuals with poor records who returned
to the unit would cost the Union a lot of money in arbi-
trations is pure speculation. Hickey's other argument to
support this request is more difficult to comprehend, as
well as being unsupported by the facts. His expressed
concern was that Respondent would "dump dead wood"
from its excluded category into the unit; that if it moved
20 such individuals into the unit at one time, it would
make the unit (labor) costs look bad and the nonunit
costs look good. However, my reading of Respondent's
proposal convinces me that the probability that the sce-
nario proposed by Hickey would occur is virtually nil.
Placement under the proposal is only to "open jobs
which have not been selected by incumbent bargaining
unit employees following established job filling prac-
tices" and only when the returning individual has a
greater seniority date than the most senior employee on
the active recall list. Furthermore, while Hickey's expla-
nation for the alleged need for this information is inter-
esting and creative, it does nothing to establish the rel-
evancy of the information sought. I therefore recom-
mend that the allegation that Respondent violated the
Act by refusing to furnish the information requested on
April 18 (as well as October 20, 1988) be dismissed.
The Union also was denied the information it request-
ed on April 10, regarding the employees who missed
time and were paid under Respondent's Disability Wage
Plan. Respondent's response to this request was not that
the information was not relevant to the Union, but that it
was confidential and would be given only upon the em-
ployees' requests. This information relates to unit em-
ployees and is therefore presumptively relevant and Re-
spondent does not argue otherwise. The fact that the
Union has since 1977 employed a consent form for em-
ployees to sign in order to obtain documents from their
personnel file does not relieve Respondent of its obliga-
tion to provide this information. New York Times Co.,
265 NLRB 353 (1982); Postal Service, 276 NLRB 1282
(1985). In Kroger Co., 226 NLRB 512 (1976), the Board
stated: "The Union is under no obligation to utilize a
burdensome procedure of obtaining desired information
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 273
where the employer may have such information available
in a more convenient form." This point is supported by
the fact that when the Union attempted to utilize its al-
leged alternative means of obtaining this information
only eight of the unit employees responded.
Respondent's principal defense to this allegation is that
this information is confidential and should not be re-
leased without the employee's consent. A party asserting
confidentiality has the burden of proof. McDonnell Doug-
las Corp., 224 NLRB 881 (1976); Howard University, 290
NLRB 1006 (1988). Respondent has not met this burden
of proof.
The Supreme Court, in NLRB v. Detroit Edison Co.,
440 U.S. 301 (1979), found that, in certain situations, con-
fidentiality claims may justify a failure to provide rele-
vant information. In making these determinations the
trier of fact must balance the union's need for the infor-
mation sought against the legitimate and substantial con-
fidentiality interests of the employer. Minnesota Mining
Co., 261 NLRB 27 (1982); Postal Service, 280 NLRB 685
(1986).
On the Union side of the scale, the information sought
is clearly relevant to the Union in determining whether
Respondent had altered its method of treating claims
under its Disability Wage Plan. This relevancy clearly
outweighs Respondent's interests here. Unlike Detroit
Edison, supra, Respondent never informed the employees
that the information requested would be kept confiden-
tial, and there is no evidence that the employees request-
ed that Respondent keep these records confidential. Ad-
ditionally, unlike certain situations where records were
found to be confidential because they were of an "inti-
mate and ' highly personal nature" (New Jersey Bell Tele-
phone Co. v. NLRB, 720 F.2d 789 (3d Cir. 1983)), the in-
formation requested would, at most, concern a "garden
variety of common ailments." New Jersey Bell Telephone
Co., 289 NLRB 318 (1988). I therefore find that Re-
spondent's failure to furnish the Union with the informa-
tion requested on April 10 violates Section 8(a)(1) and
(5) of the Act.
CONCLUSIONS OF LAW
1. Respondent, Remington Arms Company, Inc., is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Union is the exclusive representative of Re-
spondent's employees in the following appropriate unit:
All full-time and regular part-time production,
maintenance and clerical employees employed by
the Respondent at the Ilion facility; excluding
guards and supervisors as defined in the Act.
4. Respondent violated Section 8(a)(1) and (5) and Sec-
tion 8(d) of the Act by unilaterally instituting and imple-
menting the return rights proposal on about May 26,
1989.
5. Respondent violated Section 8(a)(1) and (5) of the
Act by failing and refusing to furnish the Union with the
Wage Disability Plan information it requested on April
10, 1989.
6. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
7. Respondent did not further violate the Act by fail-
ing and refusing to provide the Union with the informa-
tion it requested on April 18, 1989.
REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be required to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the purposes and policies of
the Act. Respondent shall be ordered to reinstate the
terms and conditions of employment of the employees
that existed prior to the unilateral implementation of the
return rights provision on about May 26, 1989. If any
employee's wage was adversely affected by this unlawful
change, Respondent shall be ordered to make whole
these employees for any losses they may have suffered as
a result of the unilateral change, pursuant to the Board's
usual backpay Rules. Respondent shall also be ordered to
return to a supervisory position any supervisor who was
transferred into the unit pursuant to the return rights
proposal subsequent to May 26, 1989. Respondent shall
also be ordered to provide the Union with the informa-
tion it requested on April 10, 1989, regarding its Disabil-
ity Wage Plan.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed6
ORDER
The Respondent, Remington Arms Company, Inc.,
Ilion, New York, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Making unilateral changes in terms and conditions
of employment of its employees without giving the
proper notices required by Section 8(d) of the Act.
(b) Unilaterally changing bargaining unit employees
terms and conditions of employment prior to offering
such terms to and bargaining to good-faith impasse with
the Union.
(c) Failing and refusing to furnish the Union with in-
formation that it requested which is relevant and neces-
sary to the Union's status as exclusive bargaining repre-
sentative.
(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) Restore, to the extent requested by the Union, the
terms and conditions of employment which were in
6 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
effect in the bargaining unit prior to the unilateral
change by Respondent on about May 26, 1989.
(b) Make its employees whole for any losses they may
have suffered as a result of the unilateral change, as more
fully described in the remedy section of this decision.
(c) Furnish the Union with the information it request-
ed on April 10, 1989 regarding the Disability Wage Plan.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
records necessary to analyze the amounts of money due
under the terms of this Order and otherwise necessary to
ensure that the terms of this Order are complied with.
(e) Post at its facility in Ilion, New York, copies of the
attached notice marked "Appendix."7 Copies of the
notice, on forms provided by the Regional Director for
Region 3, after being signed by the Respondent's author-
ized representative, shall be posted by Respondent imme-
diately upon receipt and maintained for 60 consecutive
days in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
IT IS FURTHER ORDERED that the allegation that Re-
spondent violated the Act by failing and refusing to pro-
vide the Union with the information it requested on
about April 18, 1989, is hereby dismissed.
7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT make unilateral changes in the terms
and conditions of our employees under our collective-
bargaining agreement with Employees' Mutual Associa-
tion of Ilion, Inc. (The Union) without giving the proper
notices; required by Section 8(d) of the Act and bargain-
ing to a good-faith impasse with the Union.
WE WILL NOT fail and refuse to furnish the Union
with information that it requested which is relevant and
necessary to the Union's status as exclusive collective-
bargaining representative of certain of our employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
rights guaranteed them by Section 7 of the Act.
WE WILL restore, to the extent requested by the
Union, the terms and conditions of employment which
were in effect in the bargaining unit prior to our unilater-
al implementation of the return rights proposal on about
May 26, 1989.
WE WILL make our employees whole for any loss they
may have suffered due to our unilateral implementation
of the return rights proposal on about May 26, 1989.
WE WILL furnish the Union with the information they
requested on about April 10, 1989, regarding our Disabil-
ity Wage Plan.
REMINGTON ARMS COMPANY, INC.