Union Switch & Signal

National Labor Relations Board - Board Decisions

Mar 31, 1995

316 N.L.R.B. 1025 (N.L.R.B. 1995)

1025
316 NLRB No. 160
UNION SWITCH & SIGNAL
1 In agreeing with the judge that the Respondent repudiated its
contractual obligation to arbitrate grievances in violation of Sec.
8(a)(5) and (1), we find this case distinguishable from Dallas Morn-
ing News, 285 NLRB 807 (1987), on which the Respondent relies
in its brief. In Dallas Morning News, the Board found that the em-
ployer’s refusal to process certain postexpiration grievances did not
constitute a repudiation, where the employer’s statements that the
union’s letter seeking arbitration had ‘‘no basis’’ and was ‘‘of no
force and effect’’ were ambiguous and may have been based on the
content of the grievances as well as the expiration of the contract.
In the present case, in contrast, the Respondent specifically relied on
its assertion that the Union was ‘‘no longer a labor union represent-
ing Jacqueline Walsh or any other Company employee’’ as the basis
for refusing to submit Walsh’s grievance to arbitration.
In agreeing with the judge that the Respondent violated Sec.
8(a)(5) and (1) by refusing to arbitrate the Walsh grievance and by
refusing to provide the information requested by the Union on April
20 and 27, 1993, based on the decertification of the Union, we find
it unnecessary to rely on Government Employees Local 888 (Bayley-
Seton), 308 NLRB 646 (1992), and rely instead on Missouri Port-
land Cement Co., 291 NLRB 1043 (1988).
Union Switch & Signal, Inc. and Society of Engi-
neers. Case 6–CA–25494
March 31, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
On April 7, 1994, Administrative Law Judge Nancy
M. Sherman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings, and con-
clusions1 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Union Switch & Signal,
Inc., Columbia, South Carolina, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
David L. Shepley, Esq., for the General Counsel.
Robert F. Prorok, Esq., of Pittsburgh, Pennsylvania, for the
Respondent.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge. This
case was heard before me in Pittsburgh, Pennsylvania, on
November 10, 1993, pursuant to a charge filed by the Soci-
ety of Engineers (the SOE) on April 30, 1993, and served
on May 3, 1993, and a complaint issued on June 21, 1993,
and amended on November 10, 1993. The complaint as
amended alleges that Respondent Union Switch & Signal,
Inc. violated Section 8(a)(5) and (1) of the National Labor
Relations Act (the Act) by failing and refusing since about
November 2, 1992, to furnish the SOE with a copy of an in-
door air quality study which is necessary for, and relevant
to, the SOE’s performance of its duties as the exclusive col-
lective-bargaining representative of some of Respondent’s
employees. The complaint as amended further alleges that
Respondent violated Section 8(a)(5) and (1) by refusing
about April 27, 1993, to process a grievance, on the ground
that the SOE was no longer the exclusive collective-bargain-
ing representative of the unit. Also, the complaint as amend-
ed alleges that Respondent violated Section 8(a)(5) and (1)
since about April 27, 1993, by failing and refusing to furnish
the Union with the air quality study and with documentation
which evaluated certain working condition accommodations,
all of which information is necessary for, and relevant to, the
SOE’s performance of its duties as exclusive bargaining rep-
resentative.
On the basis of the entire record, including the demeanor
of the witnesses, and after due consideration of the briefs
filed by counsel for the General Counsel (the General Coun-
sel) and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Delaware corporation with its principal
office and place of business in Columbia, South Carolina,
and a facility located in Pittsburgh, Pennsylvania. Respond-
ent is engaged in the manufacture and nonretail sale of rail-
way and transit signaling products and systems. During the
12-month period ending on March 31, 1993, Respondent sold
and shipped from its Pittsburgh, Pennsylvania facility goods
valued in excess of $50,000 directly to points outside Penn-
sylvania. I find that, as Respondent admits, Respondent is
engaged in commerce within the meaning of the Act, and
that assertion of jurisdiction over its operations will effec-
tuate the policies of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
For many years until April 6, 1993, the SOE has been the
designated exclusive bargaining representative of an admit-
tedly appropriate unit described in Conclusions of Law 3,
and has been recognized as such representative. This recogni-
tion has been embodied in successive collective-bargaining
agreements, the most recent of which was effective from
May 1, 1991, to April 30, 1993. The recognition clause of
this agreement indicates that the SOE has received two cer-
tifications from the Board; the recited case number of one of
these certifications (6–R–1751) indicates that it preceded the
effective date of the 1947 amendments to the Act.
B. Provisions of the 1991–1993 Bargaining Agreement
The 1991–1993 bargaining agreement included the follow-
ing provisions:
1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ARTICLE II
MANAGEMENT RIGHTS
Management of the plant and direction of the work-
ing forces are vested in the Company. The exercise of
such rights by the Company shall include but not be
limited to the right to hire, assign and schedule the
work, promote, transfer, make temporary layoffs, drop
for lack of business, and to suspend, demote, discharge,
or otherwise discipline employees for proper cause pro-
vided that no action so taken shall be in violation of
any provision of this agreement.
. . . .
ARTICLE VIII
SENIORITY
A. SENIORITY. Seniority is defined as the length of
continuous service with the Company which shall be
calculated from date of first employment or re-employ-
ment following a break in continuous service as pro-
vided in Section B of this Article. Effective January 1,
1992 in the case of re-employment, service accumulated
prior to such break will be included in determining
length of continuous service.
B. BREAK IN SENIORITY. Seniority of an employee
shall be broken in the manner set forth below:
1. Resignation or other voluntary termination of em-
ployment.
2. Upon discharge.
3. Absence for three (3) consecutive working days
without notifying the appropriate supervisor of the
reason for absence (unless the giving of such notice
is impractical).
4. Termination pursuant to Article XIII entitled
‘‘Severance Allowance.’’
C. APPLICATION OF SENIORITY. Seniority shall
only be applied to determine an employee’s rights with
respect to vacation, severance pay, and disability ab-
sence as provided for in other Articles of this Agree-
ment.
ARTICLE IX
GRIEVANCE/ARBITRATION PROCEDURE
A. DEFINITION OF GRIEVANCE. A grievance is
defined to be any dispute between the Company and
one or more employees or the [SOE] as to an alleged
violation of the terms of this Agreement, or any matter
involving wages, hours or working conditions not spe-
cifically covered by this agreement. A grievance is not
valid unless taken up in the lst Step within ten (10)
working days after the grievable event. [SOE] officers
may skip steps 1 and 2 and submit grievances directly
to step 3 of the grievance procedure. Such grievance is
not valid unless taken up within ten (10) working days
after the grievable event.
B. PROCEDURE. The following is the procedure for
adjusting grievances:
. . . .
STEP 3: If no satisfactory adjustment of the griev-
ance is made in the 2nd Step, the [SOE] Grievance
Committee must take the grievance up with the appro-
priate Vice President and the Vice President, Human
Resources, or their designated representatives within
fourteen (14) working days after receipt of the Man-
ager’s reply. . . . A grievance pertaining to a suspen-
sion or discharge may be taken up directly in step 3 by
the Grievance Committee the same day it occurs.
STEP 4: If a grievance involving an alleged violation
of a provision of this Agreement is not satisfactorily ad-
justed under the procedure set forth above, only the
[SOE] may make written request for arbitration. This
request must be made within ten (10) working days
after final answer under the 3rd Step. Such grievance
shall be submitted for final decision to an Arbitrator to
be selected as follows:
ARBITRATION PROCEDURE: An impartial arbi-
trator shall be appointed by mutual agreement of the
parties hereto within thirty (30) days of the date of
the appeal. In case of failure to agree within said
thirty (30) days, the parties shall request the Federal
Mediation and Conciliation Service to submit a list
of five (5) recognized arbitrators to the parties, who
shall select one by each alternately striking off one
name from the list. The last name remaining on the
said list shall be the arbitrator. An arbitrator to
whom any grievance shall be submitted in accord-
ance with the provisions of this Section shall have
jurisdiction and authorization to interpret and apply
the provisions of this Agreement insofar as shall be
necessary to the determination of such grievance, but
he shall not have jurisdiction or authority to make
any decision which, in any way, alters, adds to, sub-
tracts from, or is in conflict with any provision of
this Agreement. The decision of the arbitrator shall
be final and binding. The expenses and fee incident
to the services of the arbitrator shall be shared equal-
ly by the Company and the [SOE].
. . . .
D. GRIEVANCE BUSINESS. [An SOE] representa-
tive will be permitted to conduct [SOE] grievance busi-
ness upon request unless his absence would cause un-
warranted interference with Company operations. When
a representative of the [SOE] deems it necessary to
leave his section or enter another section during work-
ing hours on a grievance matter, he will be permitted
to do so unless such action would cause unwarranted
interference with Company operations. In such cases,
the appropriate supervisor will make arrangements for
the [SOE] representative to conduct the grievance busi-
ness as promptly as possible.
E. LOST TIME:
1. It is agreed that grievance processing time will be
kept to a minimum commensurate with good practice
and in the interest of efficiency. In order to keep lost
time at a minimum, the [SOE] Grievance Committee
shall be comprised of not more than three (3) [SOE]
eligible members.
1027UNION SWITCH & SIGNAL
2. No deductions will be made by the Company from
representative’s compensation for such time spent in:
a) Handling and adjustment of grievances.
b) Attendance at meeting with Management within
the employee’s basic work week.
3. The [SOE] will reimburse the Company for all
such time lost in accordance with the representative’s
hourly rate except the [SOE] will reimburse the
Company for one-half such time lost in meetings at
Step 2 and Step 3 of the Grievance Procedure.
ARTICLE X
DISCHARGE OR SUSPENSION
The Company shall not discharge or suspend any
employee without proper cause.
. . . .
ARTICLE XII
ACCESS TO RECORDS
The Company shall furnish the [SOE] upon request
any available information or records which are relevant
and necessary for the purposes of the grievance proce-
dure. . . .
ARTICLE XIII
SEVERANCE ALLOWANCE
An employee whose employment is terminated by
the Company for reorganization or lack of business rea-
sons only shall be given the following severance allow-
ance:. . .
. . . with payment of such allowance the employee
shall lose all seniority and re-employment rights for all
purposes.
. . . .
ARTICLE XV
. . . .
J. The Company will develop by January 1, 1992 a
smoking policy for application to the North Hills Facil-
ity. This policy will restrict smoking to certain inde-
pendently ventilated areas.
. . . .
ARTICLE XVI
NATURE OF AGREEMENT
This Agreement shall constitute the full and com-
plete agreement between the parties and there are no
further matters for negotiation; however, the parties
may by mutual agreement during the life of this Agree-
ment enter into supplemental agreements.
In addition, the bargaining agreement contains a provision
(art. I,B, ‘‘Society Security’’) requiring unit members to be-
come or remain SOE members as a condition of employ-
ment, but ‘‘The payment of dues to the [SOE] is not a condi-
tion of employment.’’ The agreement also contains a provi-
sion (art. I,C) requiring Respondent to honor checkoff au-
thorizations for SOE dues.
C. The SOE’s 1991 Efforts to Conduct an
Air Quality Evaluation
Many of the employees in the unit covered by Respond-
ent’s contract with the SOE work in a Pittsburgh building,
located at 5800 Corporate Drive, which is rented by Re-
spondent and whose windows are sealed. In the late summer
or early fall of 1991, the SOE retained two environmental
consultants for the purpose of conducting a study of the air
quality in this building. Unit employees Jacqueline Walsh or
Thomas C. Clapper took them to the front door of the build-
ing, where they signed in through the guard’s desk. Neither
of these environmental consultants ever prepared a report.
One of them was unable to prepare a report, because Re-
spondent refused to allow him to look at the ventilation sys-
tem. The SOE expected the other consultant to prepare a re-
port, but he never submitted one.
D. Walsh’s Separation in October 1992
At all relevant times before October 19, 1992, Walsh was
a member of the bargaining unit covered by the 1991–1993
contract. Her regular duty station was at the 5800 Corporate
Drive address. A letter to her dated October 19, 1992, from
Raymond F. Stetz, who is Respondent’s director of human
resources, began as follows:
This letter responds to your correspondence and that
of your physician(s) concerning alleged health problems
and your request to work at home or another job site
as an accommodation to these alleged health problems.
The medical information you and/or your physi-
cian(s) submitted reveals that your condition is attrib-
utable to ‘‘typical inhalants’’ in the workplace and that
‘‘Ms. Walsh cannot and should not return to her current
work place.’’
First, it is clear that your alleged health problems are
unrelated to your place of employment located at 5800
Corporate Drive, Pittsburgh, Pennsylvania. An air qual-
ity study of the Union Switch & Signal Corporate
Drive offices discloses that the air quality of these of-
fices is within acceptable limits.
The letter went on to state that Walsh had requested cer-
tain ‘‘accommodations’’ which were ‘‘not reasonable under
the circumstances.’’ The letter stated that transferring her to
another work site was not ‘‘feasible’’ because all of Re-
spondent’s engineers performing her type of work were lo-
cated in the Corporate Drive facility and, in any event,
‘‘transfer would not be effective because your alleged health
problems are caused by ‘typical inhalants’ in the work-
place.’’ The letter further stated that for various specified
reasons, ‘‘it would be an undue hardship to [Respondent] for
you to work at home.’’
This letter concluded with the following language:
Therefore, Union Switch has no choice but to treat
your alleged inability to work at the Corporate Drive
offices as a separation from employment effective Oc-
tober 19, 1992.
1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 No such letter is included in the record before me.
2 Owing to a typographical error, the letter is dated 1993 rather
than 1992.
A separate letter will be sent to you detailing appli-
cable benefit options and any accrued monies which
might be due and owing.1
E. The SOE’s Initial 1992 Request for the Air
Quality Study
The air quality study referred to in Stetz’ October 19,
1992 letter to Walsh had been prepared by Volz Environ-
mental Services (Volz) at the behest of Respondent’s land-
lord. On October 20, 1992, Stetz posted the following notice
on about 10 bulletin boards:
The Indoor Air Quality Study of our building, as an-
nounced and conducted last month, has been completed
with very good results (see the attached letter from
Volz . . .). A detailed report of the Study may be re-
viewed in my office.
The letter from Volz thus referred to, addressed to the
‘‘Property Manager/Leasing/AREEA Investment Managers,
Inc.,’’ states in part as follows:
Enclosed please find the Indoor Air Quality Study
performed at the business office of Union Switch &
Signal Inc., 5800 Corporate Drive. The report details
the survey findings, including the results of the Carbon
Monoxide (CO), Carbon Dioxide (CO2), Nitric Oxide
(NO), Nitric Dioxide (NO2), Formaldehyde (HCHO),
Radon and temperature and relative humidity monitor-
ing. All air quality parameters with respect to possible
contaminants measured were within acceptable limits.
The study itself was never posted.
At all relevant times, the president of the SOE has been
unit employee Clapper. By hand-delivered letter to Stetz
dated October 23, 1992, under the SOE’s printed letterhead,
Clapper stated, in part:
[SOE] officials wish to thoroughly review the [air
quality] report . . . I would expect the report for a
thorough detailed study to be rather lengthy, and could
take several hours to review it [sic] the depth [SOE] of-
ficers wish to review it. I do not believe you would
consider it practical for [SOE] officer(s) to sit in your
office for extended hours to review the report.
The [SOE] believes the content of the report may be
an important factor in the continued employment bene-
fit entitlements of Ms. Jacqueline Walsh. The [SOE]
also considers air quality concerns to be a working con-
dition to which employees represented by the [SOE] are
subjected.
In order to properly represent Ms. Walsh and the
other [SOE] represented employees, the [SOE] requests
a complete copy of the detailed report . . . by [the] end
of the working day of October 28, 1992. Please advise
me of any additional requirements, if any, which may
be necessary to obtain a copy of the report within the
same time frame. I believe the requested receipt date is
reasonable since you currently have a copy in your of-
fice.
Clapper never received a response to this letter.
F. Later 1992 Requests by the SOE for the Air Quality
Study; the Grievance Filed on Behalf of Employee
Walsh on October 29, 1992
By hand-delivered letter to Stetz dated October 29, 1992,
under the SOE’s printed letterhead, Clapper acknowledged
receipt of a copy of Stetz’ October 19 letter to Walsh and
stated that the SOE contended that the separation referred to
therein ‘‘is the equivalent of a discharge.’’ The letter went
on to state, in part:
Your letter listed reasons why the Company consid-
ered Ms. Walsh’s requested accommodations to be un-
reasonable, but failed to explain the term ‘‘separation of
employment.’’ I have reviewed the section of the Com-
pany Policy Manual titled ‘‘Separation from Employ-
ment’’. . . I found the phrase ‘‘inability to perform
work’’ listed under the method of ‘‘disciplinary dis-
charge.’’ I found no other referrals to ‘‘inability to per-
form work.’’ The policy indicates that the Company
also considers the separation of Ms. Walsh to be the
equivalent of a discharge.
The [SOE] further contends that [the Company] has
discharged Ms. Walsh without proper cause, and there-
fore, is in violation of Article X of the current labor
agreement [see supra, section II,B] . . . . On behalf of
Ms. Walsh, the [SOE] hereby files a grievance at step
3 of [the] grievance procedure per Article IX of the
current labor agreement [see supra, Section II,B].
By letter dated 10/23/92, the [SOE] requested a com-
plete copy of the report of the recent environmental
study by the end of the working day of 10/28/92. It has
not been received. The [SOE] needs the report to prop-
erly represent Ms. Walsh. The [SOE] considers this re-
port to be necessary and relevant information to the
grievance process. Also, the Company has a contractual
obligation to provide the requested report [specifying
art. XII, supra, part II,B]. Please provide a copy of the
report by the end of the working day of 11/4/92. A
grievance meeting can be scheduled after receipt of the
information.
Respondent did not provide the requested information.
By letter under the SOE’s printed letterhead, hand-deliv-
ered to Stetz on November 2,2 Clapper stated that the SOE
had decided to cancel the Christmas party, and asked Stetz
to stamp ‘‘approved for posting’’ an attached notice about
the cancellation. The letter went on to say:
I also want to remind you of the request I made for
a complete copy of the recent environmental study of
the building as outlined in the letter of grievance dated
10/29/92. I had also requested this information earlier
by letter to you dated 10/23/92. Per that letter I had re-
quested receipt by the end of the working day of
10/28/92. I did not receive it. Per the grievance letter
of 10/29/92, I have requested receipt by the end of the
working day of Wednesday, 11/4/92.
1029UNION SWITCH & SIGNAL
3 My finding as to the Kolkman-Clapper conversation is based on
Clapper’s testimony, which was not received to show what Stetz in
fact told Kolkman. Stetz and Kolkman testified for Respondent, but
were not asked about this conversation.
4 My finding as to the hour of the day he came to Stetz’ office
is based on Kolkman’s testimony. For demeanor reasons, I do not
accept Stetz’ testimony that Kolkman came in at about 10 a.m.
5 See Electrical Energy Services, 288 NLRB 925, 931 (1988).
6 Clapper’s notes contain the following entry: ‘‘8 page report
plus/15 pages of attachments/3 attachments, each attachment had a
cover page (15-3=12 pages of info.).’’
If you decline to provide the requested information,
then please provide the [SOE] with a written expla-
nation as to the reasons why the Company is not com-
plying with the request.
At the time Clapper sent this letter, the SOE’s vice presi-
dent was unit employee Dick J. Kolkman (also spelled
Kolkmen in the record). On an undisclosed date a few days
after Respondent received Clapper’s November 2 letter,
Kolkman advised Clapper that Stetz had told Kolkman that
the Company was not going to provide this information.3
During a conversation with Stetz the week after the Novem-
ber 2 letter, Clapper explained that he wanted the informa-
tion for grievance proceedings, stated that he wanted to have
the SOE’s legal counsel and Walsh’s physicians look it over
and evaluate it, and asked why the Company was not going
to provide the information. According to Clapper’s undenied
and credible testimony, Stetz said ‘‘that he would not pro-
vide a copy of the information, that I could see it just like
any other employee was going to be entitled to see it and
that I had no need to have a copy of the study.’’
Kolkman credibly testified that Respondent ‘‘frowns’’ on
the conduct of ‘‘union business’’ during working hours.
Clapper credibly testified that ‘‘full knowing that I could not
get a copy of the report,’’ he arranged with Stetz for a No-
vember 16 inspection of the report; Stetz testified that Clap-
per said he wanted to come in at noon, when his 1/2-hour
lunch period began, and that Clapper ‘‘has always been . . .
sensitive about company time. In my experience, he’s always
volunteered to do it on his lunch hour.’’ Clapper inspected
the report in Stetz’ office and in his presence, while various
persons who had business with Stetz came into and left the
office. Clapper’s lunchbreak is 30 minutes long. He reviewed
the report for 30 to 45 minutes, and then left the office; ac-
cording to Stetz’ testimony, Clapper left at his own volition.
Thereafter, Clapper asked if Kolkman could review the re-
port; Stetz said that ‘‘that would be fine.’’ Pursuant to ar-
rangements with management, Kolkman came to Stetz’ office
at around lunch time on November 19 and reviewed the re-
port for 30 minutes, the length of his lunch period; Stetz tes-
tified that Kolkman, too, left at his own volition.4 In Stetz’
presence, each of these employees took notes of the report;
Clapper’s notes cover two handwritten pages and Kolkman’s
notes cover three. Stetz did not tell either employee that the
amount of time which he could spend reviewing the report
was subject to any restrictions consistent with Stetz’ other
scheduling obligations. Stetz credibly testified that he did not
recall that Clapper or Kolkman told Stetz on either Novem-
ber 16 or 19 that reviewing the report was inadequate, and
there is no evidence that either employee so told Stetz on
these occasions. Stetz further testified that if Clapper or any
other SOE representative had asked Stetz for an additional
opportunity to review the report, Stetz would have permitted
it.
Clapper credibly testified that the report (which is not in
the record)5 ‘‘consisted of several pages of text which was
sort of in summary form and that was followed by really
about 12 pages of tabulated data from which the results were
on like on three cover sheets along with the various tabula-
tions.’’6 The contents of the employees’ notes are described,
infra, Section II,I,1,b. After both Clapper and Kolkman had
taken these notes, they discussed the methods which had
been used in the study. Kolkman expressed to Clapper the
opinion that the way it had been conducted was flawed; that
the measurements had not been taken near where Walsh’s
desk had been situated, but had been taken in ‘‘an area close
to the lobby in some cases where you have the fresh air
coming in from doors opening; other areas in the building
were less populated, maybe not quite as heavy . . . they
were probably somewhat selectively made.’’
On an undisclosed date, Clapper sent Walsh a copy of
both his and Kolkman’s notes. She discussed them with
Clapper, but not with the two air quality consultants (whose
identity she knew) whom the SOE had used for the aborted
1991 air quality studies. Nor did Clapper or Kolkman review
their notes with either of these consultants.
G. The February 1993 Third-Step Meeting on the
Walsh Grievance
As previously noted, the Walsh grievance was filed at the
third step of the grievance procedure. On February 22, 1993,
the parties met for a third-step meeting on that grievance.
Present for the SOE were Walsh, SOE President Clapper,
then SOE Vice President Roger Lyle, and SOE Attorney
Thomas E. Weiers Jr. Present for Respondent were Stetz and
Attorney Robert F. Prorok. The SOE representatives took the
position that Walsh’s separation constituted a breach of the
provision of the bargaining agreement (art. X) which forbids
discharge or suspension without proper cause (see supra, sec.
II,B). The SOE suggested a number of what it claimed were
reasonable accommodations to Walsh’s respiratory problems
which were believed to be caused by the Corporate Drive
building, possibly its air quality. These suggestions included
shifting her working hours to times of the day when smoke
and other deficiencies in the air may have dissipated, having
her travel more, having her work at home part of the time,
and putting her in a better ventilated area or in a room where
a small openable window could be installed in one of the ex-
isting sealed windows. Weiers stated that the SOE would be
‘‘perfectly willing to look over the information that they
would have available to try to arrive at those accommoda-
tions.’’ Respondent’s representatives told the SOE that they
would look over these suggestions and respond within 14
days.
By letter to Weiers dated March 10, 1993, Prorok stated
that the SOE’s ‘‘alternative proposals’’ at the February 22
meeting ‘‘all essentially involved more moderate accom-
modations to Ms. Walsh’s alleged respiratory restrictions
than were proposed prior to her separation from employ-
ment.’’ The letter went on to say:
1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 The bargaining agreement states that a request for arbitration
‘‘must be made within ten (10) working days after final answer
under the 3rd step.’’ This answer was dated March 10. The record,
however, fails to show when the SOE received it, when Respondent
received the SOE’s letter requesting arbitration, or the number of
working days during any allegedly relevant period. Clapper credibly
testified without contradiction on Nov. 10, 1993, that Respondent
had never said that the SOE’s request for arbitration was submitted
in an untimely manner. Nor has Respondent raised such a contention
before me.
8 Clapper testified that he was there referring to his letters of Octo-
ber 23 and 27, 1992 (see supra, sec. II,E,F).
As you recognized at the February 22, 1993 meeting,
Ms. Walsh’s proposal to work at home full time was
not feasible. Nonetheless, that was the restriction placed
on Ms. Walsh’s return to work by Dr. Lieberman be-
cause of ‘‘typical inhalants’’ in the workplace: ‘‘Ms.
Walsh cannot and should not return to her current work
place.’’. . . Union Switch continues to believe that its
reasons as fully detailed in the October 19, 1992 letter
from Ray Stetz to Ms. Walsh were ample justification
for not permitting Ms. Walsh to work at home.
Ms. Walsh has not been employed by Union Switch
since October 19, 1992. Therefore, Union Switch no
longer has any obligation to reasonably accommodate
her alleged disability.1 The accommodations suggested
by the SOE and discussed at the February 22, 1993
third step meeting therefore represent settlement pro-
posals and nothing more. Union Switch rejects these
settlement proposals because it acted properly in sepa-
rating Ms. Walsh from employment effective October
19, 1992. Moreover, the degree of isolation and alter-
ation required by the SOE’s settlement proposals would
not constitute a reasonable accommodation in any
event.
In accordance with the foregoing, Union Switch de-
nies the October 29, 1992 letter grievance filed on be-
half of Jacqueline Walsh.
1 This of course assumes the existence of a qualified disability
which Union Switch does not concede.
H. Later Events in 1993: the March 23 Request for
Arbitration; the April 6 Decertification of the SOE; the
April 20 and 27 Requests for the Air Quality Report
and Other Information; Respondent’s April 27
Rejection of the Requests; the April 30 Expiration of
the Bargaining Agreement
By certified mail letter dated March 23, 1993, the SOE
stated that it was ‘‘still of the opinion that Ms. Walsh was
improperly separated from her employment by the Company
in violation of our labor agreement.’’ The letter requested
‘‘binding arbitration per step 4 of Article 1X Part B
Grievance/Arbitration Procedure of our current labor agree-
ment’’ (see supra, sec. II,B).7 On March 26, the SOE lost
a decertification election. No objections were filed, and on
April 6, 1993, the Board issued a certification of election re-
sults.
A letter to the Federal Mediation Conciliation Service
dated April 8, 1993, under the SOE’s printed letterhead and
signed ‘‘Thomas C. Clapper, President, S.O.E.,’’ with copies
to Stetz among others, stated, in part:
A dispute exists between the Society of Engineers, a
labor union, and Union Switch & Signal, Inc. Said par-
ties are submitting the dispute to binding arbitration per
applicable sections of the current collective bargaining
agreement.
Please find enclosed a copy of pertinent pages of the
current collective bargaining agreement (art. IX, sec. B,
step 4) concerning the arbitration procedure [supra, Sec-
tion II,B]. The procedures includes [sic] procuring a list
of five arbitrators from your agency.
The dispute involves an employee dismissal, a
‘‘proper cause’’ clause, and the ‘‘Americans with Dis-
abilities Act [’’] which became effective in late July of
1992. . . .
Please inform me as to when I can expect to receive
the list of arbitrators.
A hand-delivered letter to Stetz dated April 20, 1993,
under the SOE’s printed letterhead, and signed ‘‘Thomas C.
Clapper/President, S.O.E.,’’ stated, in part:
In order to properly represent Ms. Walsh at the up-
coming arbitration proceeding, the [SOE] is requesting
the following information.
1. A copy of the report of the air quality study done
last fall at the 5800 Corporate Drive facility. The [SOE]
needs a copy for review by the [SOE’s] legal counsel
and for review by Ms. Walsh’s physician. Your restric-
tion of only allowing [SOE] officers to read the report
and take some notes is inadequate for this purpose.
Note: A copy of this report has been requested twice
before by the [SOE]8 and once by Ms. Walsh.
2. Copies of all documentation which evaluated the
accommodations as requested by Ms. Walsh or the al-
ternative accommodations presented during the 2/22/93
grievance meeting, including but not limited to cost es-
timates, equipment purchases, manpower impacts,
building modifications, changes in job assignments, and
work schedule modifications.
Receipt of this information is requested by the end
of the working day on Monday, 4/26/93. . . .
I will at [sic] the Company’s Batesburg, S.C., facility
on April 21st through 23rd. If you have any questions
you may ‘‘page’’ me there.
A hand-delivered letter to Stetz dated April 27, 1993,
under the SOE’s printed letterhead and signed ‘‘Thomas C.
Clapper/President, S.O.E.’’ again requested the information
specified in Clapper’s April 20 letter, and again stated:
The [SOE] needs a copy [of the air quality study] for
review by the [SOE’s] legal counsel and for review by
Ms. Walsh’s physician. Your restriction of only allow-
ing [SOE] officers to read the report and take some
notes is inadequate for this purpose.
By letter to Clapper dated April 27, 1993, Company Attor-
ney Prorok stated that Respondent had referred Clapper’s
March 23, and April 8, and 20, 1993 correspondence to
1031UNION SWITCH & SIGNAL
9 Clapper testified that at the time of decertification, ‘‘if you want
to really get technical about it, if you go back to a number of years,
there’s one grievance that just sort of died. It was never fully proc-
essed. It got hung up because the company refused to provide infor-
mation on it. . . . Probably [it] wasn’t addressed for well over a
year. It’s essentially an extension of the same situation.’’ The griev-
ance had been filed by Walsh regarding a disciplinary warning about
her job performance. Stetz testified that Respondent did not in any
fashion refuse to process that grievance, and that the SOE had never
asked for the appointment of an arbitrator to hear it.
10 The notes by Clapper in the text to which fn. 17 (infra) is at-
tached were made in connection with the following material which
he at least attempted to copy verbatim from the study: ‘‘No micro-
bial growth or molds observed on the surfaces of the air handling
units, ceiling grills or diffusers.’’ Although Kolkman, too, reviewed
the study in November 1992, he testified in November 1993 that as
to the cleaning, his assertions in the November 1993 letter had been
based on his personal observations in the rest area where he and
other employees had coffee, and not on something that he gained
from reading the study.
11 Logically followed, however, this approach might lead to some
rather peculiar results. For example, if Respondent was under a stat-
utory duty to supply the document (on request) within a reasonable
time, and the SOE’s initial request for the document had been its
Oct. 29 request to receive the document by Nov. 4, the approach in
the text suggests the conclusion that if Respondent had first supplied
the document on Nov. 5—a week after it was requested—Respond-
ent would have violated the Act by failing to supply it within a rea-
sonable time—that is, by undue delay in supplying it.
March 23 and April 8 and 20, 1993 him for reply. Prorok’s
letter went on to say that Respondent would not participate
in the selection of an arbitrator, would not arbitrate the
Walsh ‘‘matter,’’ and would not produce the information re-
quested in Clapper’s April 20 letter to Stetz. After setting
forth the SOE’s decertification, the letter stated:
The SOE is no longer a labor union representing Jac-
queline Walsh or any other Company employee. There-
fore the SOE is not privileged to arbitrate the Walsh
matter, nor may it compel the Company to produce in-
formation under the National Labor Relations Act.
These are prerogatives reserved for a collective bargain-
ing representative.
The bargaining agreement between Respondent and the
SOE expired by its terms on April 30, 1993, 3 days after the
date on this letter. No grievances were filed after March 26,
1993, the date of the decertification election. As of that date,
no grievances except the Walsh grievance were pending at
any stage of the arbitration procedure, and (with the excep-
tion noted in the margin) no grievances were pending at any
stage of the grievance procedure.9 As of the date of the hear-
ing before me (November 10, 1993), Respondent had never
supplied the SOE with the information which Clapper re-
quested in his letters to Stetz dated April 20 and 27, 1993.
Clapper testified at the hearing before me that the SOE in-
tended to argue, before any arbitrator who might hear the
Walsh grievance, that she should be reinstated with full
backpay; ‘‘We hope for that.’’
A letter dated November 2, 1993, from Kolkman to the di-
rector of the Office of Federal Contract Compliance ‘‘in re-
gard to the Notification of Results of Investigation concerning
Ms. Walsh’s complaint . . . and in particular with respect to
the indoor Air Quality study performed at 5300 Corporate
Drive [sic],’’ states that in Kolkman’s ‘‘opinion’’ the study
was ‘‘flawed.’’ The letter asserted that the walls and ceilings
near the duct openings had been ‘‘extensively cleaned’’ of
‘‘mold and other foreign matter’’ a week before the test
commenced;10 on the fact (which he had learned from the re-
port) that the test had been performed on a Monday, after
‘‘The building had the weekend to dissipate its built-up pol-
lutants of the previous week,’’ and on the identity of the test
areas (which he had learned from the report), described in
the letter as ‘‘the least populated areas in the building’’ (the
test areas did not include Walsh’s work area). Kolkman’s let-
ter further stated, ‘‘Copies of the actual test data were not
available. The test data could be reviewed only in the office
of the Manager of Human Resources’’; Kolkman credibly
testified that he included this statement in the letter because
‘‘I called Mr. Stetz and asked him if we could get a copy
of it. It was not available’’; and that Kolkman wanted a copy
because ‘‘Basically, I wanted to see what the data were.’’
The letter concluded with the language, ‘‘I believe the test
. . . was flawed and as a result denies Ms. Walsh a fair ob-
jective assessment of the air quality in the building where
Ms. Walsh had her office.’’
I. Analysis and Conclusions
1. Whether Respondent violated Section 8(a)(5) and (1)
by failing and refusing since about November 2, 1992,
to furnish the SOE with a copy of the indoor
air quality study
a. Whether this allegation is time-barred
Paragraph 10 of the complaint in its final form alleges that
Respondent violated Section 8(a)(5) and (1) ‘‘since about
November 2, 1992,’’ by failing and refusing to furnish the
SOE with a copy of the indoor air quality study. Respondent
contends that this allegation is time-barred by Section 10(b)
of the Act, on the ground that the SOE’s initial request for
this document was made on October 23, 1992, more than 6
months before the charge was filed on April 30, 1993, and
served on May 3, 1993. Respondent errs in tacitly assuming
the October 23 date of the SOE’s request to be the critical
date; rather, the critical date is the date of Respondent’s al-
legedly unlawful failure or refusal to supply the document.
New Jersey Bell Telephone Co., 289 NLRB 318 fn. 2 (1988);
Christopher Street Owners Corp., 286 NLRB 253 (1987),
modified 136 LRRM 2648 (D.C. Cir. 1991). Nevertheless,
because the SOE’s October 23 letter requested the document
on or before October 28, I assume, without deciding, that
October 28 was the critical date to the extent that the Gen-
eral Counsel relies on Respondent’s conduct in connection
with the October 23 letter, to which Respondent never re-
plied (see J. P. Sturrus Corp., 288 NLRB 668 (1988)), and
that because October 28 fell outside the 10(b) period, the
complaint would be time-barred with respect to such con-
duct.11
On October 29, 1992, however, the SOE again requested
the document, this time by November 4, 1992. Because this
November 4 date fell within the 10(b) period, the complaint
is not time-barred with respect to Respondent’s conduct in
connection with this request (Sturrus, supra,) or the SOE’s
requests for the same document by Clapper’s letter to Stetz
1032 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Respondent appears to contend that because the SOE’s charge
alleges a refusal to bargain ‘‘Since, on, or about 11/02/92,’’ Sec.
10(b) precludes the General Counsel from relying on the Oct. 29,
1992 request that Respondent provide a copy of the study by Nov.
4, 1992. I find the variance as to dates insufficient to call for such
a conclusion. Bentson Contracting Co., 298 NLRB 199 fn. 4 (1990).
13 See generally, Oil Workers Local 6-418 (Minnesota Mining) v.
NLRB, 711 F.2d 348 (D.C. Cir. 1983). I note that the 1991–1993
agreement called for restriction of smoking to ‘‘certain independ-
ently ventilated areas’’ in the ‘‘North Hill Facility’’ (supra, part II,
B).
14 American Telephone Co., 250 NLRB 47, 54 (1980), enfd. 644
F.2d 923 (1st Cir. 1981); Laidlaw Waste Systems, 307 NLRB 1211,
1214 (1992); New Jersey Bell, supra at 331–332; NLRB v. Electrical
Workers Local 497 (Apple City Electric), 795 F.2d 836, 839 (9th
Cir. 1986).
15 Clapper is classified as an ‘‘Engineer A,’’ and his job respon-
sibilities have consisted of designing magnetic base products.
Kolkman is classified as a ‘‘Senior Engineer’’ who designs elec-
tronic circuitry in railroad signalling equipment.
16 He testified that he never found out the meaning of the chemical
abbreviations he was asked about on direct examination by Respond-
ent, because ‘‘they retained that this level were [sic] okay on those
parts.’’ Although all of these abbreviations in his Nov. 19, 1992,
notes were explained in the letter from Volz which Respondent post-
ed on Oct. 20, 1992, the record fails to show how long this letter
was posted and, moreover, Kolkman testified in Nov. 1993. I suspect
however, that to some extent he testimonially overstated his igno-
rance as to these abbreviations.
dated November 2, 1992, Clapper’s oral request to Stetz a
few days later, and Clapper’s letters to Stetz dated April 20
and 27, 1993.12 Respondent’s failure to respond to the
Union’s initial request therefor on October 23, 1992, does
not render time-barred the complaint allegations with respect
to Respondent’s failure and refusal within the 10(b) period
to supply the document pursuant to requests therefor after
October 23, 1992. Chesapeake & Potomac Telephone Co. v.
NLRB, 687 F.2d 633, 637–638 (2d Cir. 1982); Resthaven
Nursing Home, 293 NLRB 617, 618 (1989). I find no merit
to Respondent’s contention that the November 2 letter im-
posed no duty on Respondent because it ‘‘is not an informa-
tion request [but] a letter merely reminding [Respondent] of
the pendency of the October 29 requests’’ (Br. 5). See Accu-
rate Die & Mfg. Corp., 242 NLRB 280, 283, 285 (1979). In
any event, the quoted language concedes the sufficiency of
the ‘‘October 29 requests’’ that Respondent provide a copy
of the study by a date within the 10(b) period. Nor does Re-
spondent question the sufficiency of the requests made after
November 2, 1992.
b. Whether Respondent’s conduct in connection with the
1992 requests after October 23 violated
Section 8(a)(5) and (1)
Section 8(a)(5) and (1) of the Act imposes on an employer
the duty to furnish, to its employees’ statutory representative,
relevant information which is needed by the representative in
carrying out its statutory duties and responsibilities, including
its responsibilities in connection with unit employees’ griev-
ances. Detroit Edison Co. v. NLRB, 440 U.S. 301, 303
(1979); NLRB v. Acme Industrial Co., 385 U.S. 432, 435–
439 (1967); NLRB v. Pfizer, Inc., 763 F.2d 887, 889–890
(7th Cir. 1985); NLRB v. Illinois-American Water Co., 933
F.2d 1369, 1377–1378 (7th Cir. 1991); Consolidation Coal
Co., 307 NLRB 69, 72 (1992). As Respondent does not ap-
pear to question, the air quality study constitutes relevant in-
formation which was needed by the SOE in processing the
Walsh grievance based upon her separation for alleged in-
ability to work allegedly because of respiratory problems for
which Respondent was unable or unwilling to make accom-
modations in connection with air quality. Moreover, as Re-
spondent does not appear to dispute, the air quality study
would have been relevant information needed by the SOE in
exercising its statutory right to try to protect employees from
exposure to unhealthful air at their workplace.13 Respondent
contends, however, that it discharged its statutory duty to
supply information when, in response to the SOE’s repeated
requests for a copy of this document, Respondent made it
available to SOE representatives for inspection and
notetaking. I disagree.
Although an employer is not obligated to furnish informa-
tion in the exact form requested by the employees’ represent-
ative, the employer is obligated to make that information
available in a manner which is consistent with such consider-
ations as the complexity, volume, and nature of the informa-
tion involved; the importance to the bargaining representative
vel non of accurate and complete information; the compara-
tive costs to both the employer and the bargaining represent-
ative of photocopying as compared to the procedures of read-
ing, notetaking, and hand-copying; whether grievance meet-
ings would be shortened and the grievance process expedited
and otherwise facilitated by photocopying rather than by
using the procedure of reading, notetaking, and hand-copy-
ing; and the ability of the bargaining representative’s hand-
copyist to decide which portions of the document should be
copied because they were relevant or helpful to understand-
ing the relative merits of the parties’ positions.14
In the instant case, every one of these considerations sup-
ports the General Counsel’s contention that the statute re-
quires Respondent to furnish the SOE with a copy of the air
quality study, and that Respondent did not discharge its stat-
utory obligations by giving two SOE officers—both of them
unit employees—the opportunity to read it and take notes.
The air quality study included 12 pages of tabulations, which
would not only be laborious to copy by hand but also be dif-
ficult to copy by hand with absolute accuracy. Moreover, al-
though Clapper and Kolkman have bachelor’s degrees in
physics and electrical engineering, respectively, neither of
them is an expert in air quality;15 and the lack of any sub-
stantial resemblance between their respective notes of the air
quality study suggests in itself that at least one of these em-
ployees, and perhaps both, are not wholly capable of
ascertaining which portion of the study would be helpful to
the persons whom the SOE consulted, or planned to consult,
to assist it in handling the Walsh grievance or assessing what
(if anything) should be done in connection with the air qual-
ity in the Corporate Drive building. Thus, Kolkman testified
that when he copied down from the report the chemical ab-
breviations for various pollutants he did not know what these
abbreviations stood for;16 and, when I pointed out to him an
entry in his notes which I read as referring to the ‘‘majoa
effect’’ and asked whether he remembered what it was, he
credibly replied, ‘‘No, I don’t. Sorry. I’m sure a quality engi-
neer can, quality air.’’ Similarly, when Clapper was asked
about an entry in his notes stating, ‘‘OSHA PEL 35 ppm,’’
1033UNION SWITCH & SIGNAL
17 See fn. 10, supra.
18 ‘‘[F]ull knowing . . . that I could not get a copy of [the air
quality study], I did arrange [with Stetz] to go in and look at the
report on November 16th, 1992.’’
19 Whether Respondent violated the Act in connection with the
SOE’s 1993 requests is discussed infra, sec. II, I,3.
20 Cf. Xidex Corp. v. NLRB, 924 F.2d 245, 255 (D.C. Cir. 1991),
relied on by Respondent, where the court stated,
The employer’s position did not amount to a repudiation of
the union contract. Instead, the delay [in submitting to arbitra-
tion] resulted from [the employer’s] position that, under the col-
lective bargaining agreement, it had no duty to arbitrate the par-
ticular grievances in question.’’
he credibly testified, ‘‘I don’t know what the PEL represents.
I am familiar with OSHA, it is a Federal agency; 35 would
be a concentration of something.’’ Also, after a portion of his
notes regarding the Volz recommendations, he wrote ‘‘(Note:
Can’t be sure what all is covered by this statement)’’; when
asked about this entry, he testified, ‘‘Essentially, I don’t
know to what depth of analysis you know, what they looked
for, how they looked for it. It was just a general conclusion
made by the consultant without really explaining how it was
done.’’17 In addition, Clapper credibly testified that he was
not at all familiar with the meters whose names he (but not
Kolkman) copied from the report, which stated that these
were the equipment used to take the measurements. Clap-
per’s October 23, 1992 estimate that to ‘‘review’’ the report
would take ‘‘several hours . . . extended hours’’ (the former
estimate being relied on in Respondent’s brief) was advanced
before any SOE representative had seen the report, and sug-
gested only a preliminary judgment—which the SOE did not
adhere to after seeing the report and processing the griev-
ance—that a mere ‘‘review’’ would be sufficient. Further,
the expense of photocopying a document consisting of about
12 pages of tables plus several summarizing pages would not
appear to be prohibitive; and notwithstanding Clapper’s re-
quest in his October 23, 1992 letter that Stetz advise him of
any ‘‘additional requirements . . . which may be necessary
to obtain a copy,’’ Respondent never offered to provide a
photocopy if the SOE would pay for the expense of the pho-
tocopy. Indeed, so far as the record shows, Respondent’s rep-
resentatives have never given the SOE any reason whatever
for denying the SOE a copy and requiring SOE’s employee
officers to use a ‘‘quill and scroll ritual’’ (Communication
Workers Local 1051 (American Telephone Co.) v. NLRB, 644
F.2d 923, 924 (1st Cir. 1981)).
I regard as unwarranted Respondent’s proposed inference
that satisfaction by the SOE with its note-taking/hand-copy
opportunity is shown by SOE’s failure to ask for a complete
copy between about November 9, 1992 (before Clapper’s and
Kolkman’s inspections of the study on November 16 and 19,
respectively) and April 20, 1993 (12 days after the SOE re-
quested arbitration). Clapper’s testimony shows that Re-
spondent’s inspection offer was accepted by him reluctantly,
and because Respondent had refused to give him a copy.18
Because the SOE had fruitlessly requested a copy on four
different occasions between October 23 and about November
9, and Respondent had repeatedly refused such requests, the
most that can be inferred is that the SOE believed the advan-
tages of obtaining without the study a speedy resolution of
a perceivedly meritorious grievance outweighed the advan-
tages of obtaining a document which might or might not im-
prove the SOE’s chances of a favorable third-step resolution
but would almost certainly entail delay in whatever third-step
disposition was reached as to Walsh’s separation. See Min-
nesota Mining & Mfg. Co., supra at 357. After Respondent
rejected the grievance at the third step and arbitration was
the SOE’s only further recourse, the SOE decided that the
advantages of obtaining the study outweighed the advantages
of obtaining a prompt arbitral disposition of the grievance;
accordingly, the SOE requested the study again and filed
charges with the NLRB when the study still was not forth-
coming.
The cases relied on by Respondent do not suggest that its
willingness to permit inspection, notetaking, and copying of
the instant air quality study was sufficient to comply with
Respondent’s statutory duty in connection with that study,
which included 12 pages of tabulations as well as other ma-
terial. In Roadway Express, 275 NLRB 1107 (1985), the doc-
ument consisted of a single, one-page letter from a customer;
in Abercrombie & Fitch Co., 206 NLRB 464 (1973), the
documents consisted of a half-page confession of theft from
a cash register and an ‘‘uncomplicated cash register record
consisting of three one-page documents and a series of sales
slips.’’
For the foregoing reasons, I find that Respondent violated
Section 8(a)(5) and (1) by failing and refusing to provide a
copy of the air quality study upon the SOE’s requests on Oc-
tober 29 and November 2, 1992.19
2. Whether Respondent violated Section 8(a)(5) and (1)
by its conduct in connection with the SOE’s effort to
submit the Walsh grievance to arbitration
An employer violates Section 8(a)(5) and (1) of the Act
by repudiating a contractual obligation to arbitrate. Indiana
& Michigan Electric Co., 284 NLRB 53, 59 (1987). Such a
violation is made out where an employer engages in a whole-
sale refusal to apply the contractual arbitration provision to
grievances which arose under the contract, on the ground that
the contract has expired. Indiana & Michigan, supra at 59–
60. Contrary to Respondent, I conclude that Respondent’s
conduct constituted a ‘‘wholesale repudiation of its contrac-
tual obligation to arbitrate’’ within the meaning of Indiana
& Michigan. It is true that the Walsh grievance was the only
grievance which Respondent refused to arbitrate. However,
the Walsh grievance was also the only pending grievance as
to which the prearbitration grievance procedure had been ex-
hausted before the contract expired; and, in advising the SOE
that Respondent would not arbitrate the Walsh grievance, Re-
spondent advanced as its sole reason the claim that the SOE
was ‘‘no longer a labor union representing Jacqueline Walsh
or any other Company employee’’ and that the ‘‘privilege
[]’’ to arbitrate the matter ‘‘is a ‘‘prerogative [] reserved for
a collective bargaining representative.’’ Such a statement in-
dicated ‘‘a blanket refusal to arbitrate any grievance of any
kind’’ (A. H. Belo Corp., 285 NLRB 807 (1987)).20 More-
over, Respondent erred in contending that the decertification
deprived the SOE of any right which it otherwise would have
had to require the arbitration of grievances which arose dur-
ing the effective period of the bargaining agreement. Govern-
1034 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 Bayley-Seton cannot be distinguished, as Respondent seeks to
do, on the ground that it alleged 8(b)(1)(A) violations by a union
for arbitrarily refusing to process the grievances of three employees
(the charging parties) who had been included in the bargaining unit
represented by the union before its decertification. In sustaining the
complaint, the Board found the refusal to be arbitrary because
grounded on the decertification, which was found to be an arbitrary
reason on the basis of cases which held an employer was obligated
by Sec. 8(a)(5) of the Act, as well as by contract, to arbitrate
predecertification grievances which arose during the term of a con-
tract.
22 The SOE’s mailing address, which is included in its letterhead,
is 5800 Corporate Drive, an office building which (according to
Stetz) is leased in its entirety by Respondent.
ment Employees Local 888 (Bayley-Seton), 308 NLRB 646,
649–650 (1992).21
Respondent appears to contend that its repudiation of the
contractual arbitration provisions did not violate Section
8(a)(5) and (1), on the ground that by the time this repudi-
ation occurred, the SOE was no longer a labor organization
within the meaning of Section 2(5) of the Act. As to this
contention, the record shows that the SOE was the NLRB-
certified representative of a unit of Respondent’s employees
between at least 1947 and April 6, 1993. During most of this
period, it was a party to collective-bargaining agreements
with Respondent, the most recent of which expired on April
30, 1993, and included a recognition clause and provisions
with respect to wages, vacations, holidays, grievances, pen-
sions, insurance, jury and funeral pay, discharge or suspen-
sion, severance pay, checkoff, and SOE membership as a
condition of continued employment. On April 30, 1993,
Weiers signed the charge in the instant case, in his capacity
as counsel for the SOE. At least as late as April 27, 1993,
Clapper was sending out letters signed ‘‘President, S.O.E.’’
under the letterhead which he had been using at least as early
as October 29, 1992—namely, ‘‘Society of Engineers/Repre-
senting the Engineering Personnel of Union Switch &
Signal/5800 Corporate Drive-Pittsburgh, Pennsylvania.’’ On
November 10, 1993, employee Clapper credibly testified to
the following effect: SOE is a membership organization
whose members include employees of Respondent. SOE’s of-
ficers are selected by election. Clapper is the president of the
SOE, and has occupied that position for 5 years. The SOE
conducts a general membership meeting annually, and con-
ducted such a meeting in July or early August 1993, where
topics other than Walsh’s situation were discussed. In addi-
tion, about every 2 months, a ‘‘board of representatives’’
meets; such a meeting was held by Clapper on November 9,
1993, regarding the unfair labor practice hearing and the sta-
tus of Walsh’s grievance. Employees pay dues into the SOE
treasury; they are deposited in a current SOE account into
which both predecertification and postdecertification dues
were deposited. The last ‘‘major’’ dues payment was made
in March 1993, the last month during which Respondent
honored the employees’ checkoff authorizations. Clapper
himself however, paid dues in early November 1993, and
employee Kolkman paid dues in June 1993, although he
might be due a refund because dues had been ‘‘recently sus-
pended’’ with a view to lowering them in view of the re-
duced activity by the SOE which was anticipated as a con-
sequence of the decertification on April 6, 1993.
Section 2(5) of the Act defines a ‘‘labor organization’’ as
any organization of any kind, or any agency or em-
ployee representation committee or plan, in which em-
ployees participate and which exists for the purpose, in
whole or in part, of dealing with employers concerning
grievances, labor disputes, wages, rates of pay, hours of
employment, or conditions of work.
I conclude that as of the close of the hearing on November
10, 1993, the SOE was, and at all material times had been,
a labor organization within the meaning of Section 2(5). In-
deed, Respondent does not appear to question that the SOE
enjoyed that status between its certifications (no later than
1947) and the decertification election on March 26, 1993,
and that until that date the SOE was an organization in
which Respondent’s employees participated and which ex-
isted at least partly for the purpose of dealing with Respond-
ent as an employer concerning the subjects specified in Sec-
tion 2(5). Moreover, after the decertification election and cer-
tification of results, employees of Respondent continued to
participate in the SOE, including paying dues into a treasury
which was kept in a bank account under SOE’s name, and
attending membership and board meetings. Furthermore, after
the April 1993 decertification, counsel retained by the SOE
filed on its behalf a charge which alleged that Respondent
had refused to bargain with the SOE since November 1992.
Also, after the decertification, the SOE continued to use a
letterhead which described it as representing Respondent’s
engineering personnel, and continued its attempts to pros-
ecute the Walsh grievance. The absence of evidence that
after the decertification the SOE otherwise actively rep-
resented any employees in dealing with management is at-
tributable to the fact that it is still an unaffiliated organiza-
tion with membership consisting at least mostly (and prob-
ably entirely) of Respondent’s employees, has held itself out
in its letterhead as representing Respondent’s personnel (with
no reference to any other employer),22 and after decertifica-
tion had no power to compel Respondent to deal with it for
most purposes. I perceive no basis for inferring that the de-
certification changed the SOE’s 46-year purpose for existing,
as distinguished from its power to effectuate that purpose in
the immediate future. Although the decertification may have
rendered the SOE an ineffectual representative, which for
most purposes cannot now require Respondent to deal with
it, this circumstances does not deprive the SOE of its status
as a labor organization. See Alto Plastics, 136 NLRB 850,
851–852 (1962); Kodiak Island Hospital, 244 NLRB 929
(1979).
Accordingly, I find that Respondent’s refusal to arbitrate
the Walsh grievance, on the ground that the SOE had been
decertified, amounted to a repudiation of the contractual arbi-
tration provisions with respect to predecertification griev-
ances which arose during the term of the contract and, there-
fore, violated Section 8(a)(5) and (1) of the Act. I need not
and do not consider whether loss of such status before the
SOE requested arbitration would have excused Respondent’s
repudiation of the arbitration provisions, or whether loss of
such status thereafter would have affected the remedy for
such unlawful repudiation.
1035UNION SWITCH & SIGNAL
23 This decision was unanimous with respect to the holding for
which it is cited here. See the concurring/dissenting opinion of then
Board Member Clifford R. Oviatt Jr., 299 NLRB at 919.
24 Unlike the case at bar, Retail Clerks International Assn. v.
Montgomery Ward & Co., 316 F.2d 754 (7th Cir. 1963), relied on
in Respondent’s posthearing brief, involved a decertification which
issued pursuant to a decertification petition which was timely with
respect to a current, 5-year contract because that contract exceeded
the maximum duration (then, 2 years; under present Board practice,
3 years) during which the Board would treat the contract as a bar
to all representation petitions except a petition filed by a noncertified
contracting union. See Montgomery Ward, supra at 757; General
Cable Corp., 139 NLRB 1123 (1962). In cases like Montgomery
Ward, to regard the contract as in effect after the contracting union’s
decertification (there, about 3 years before the contract was to expire
by its terms) would undermine a principal purpose of General
Cable—that is, to preclude undue restriction of the employees’ rights
to freedom of choice of representatives. In the case at bar, because
the bargaining agreement had only a 2-year duration and expired by
its terms less than a month after the SOE’s decertification, giving
it effect for its full term would contribute to the reasonable stability
whose preservation is another principal purpose of General Cable.
Sheet Metal Workers Local 162 v. Jason Mfg., 900 F.2d 1392 (9th
Cir. 1990), also cited by Respondent, involved a representation peti-
tion filed by an employer after the June 30, 1983 expiration of an
earlier bargaining agreement and before the Feb. 1984 issuance of
an interest-arbitration award which purported to determine the terms
and effective period of a contract to become effective retroactive to
July 1, 1983, and whose expiration date was agreed to be June 30,
1986. Under such circumstances, the court’s conclusion that as to the
period after being decertified in Feb. 1986, the union had no ‘‘rights
under the contract’’ is consonant with the results reached by the
Board with respect to contracts agreed to after a petition has been
filed—results which accommodate the respective interests of stability
in bargaining relationships once established, employee freedom of
choice, and predictability of a period when an ouster of or a change
in the identity of the current statutory representative may be sought.
See RCA Del Caribe, Inc., 262 NLRB 963, 964–966 (1982); Embree
Buses, Inc., 226 NLRB 714 fn. 6 (1976); W. A. Krueger, supra, 299
NLRB at 915–918 (1990) (then Member Oviatt dissenting); Brown
Transport Corp., 296 NLRB 1213 (then Chairman James M. Ste-
phens dissenting on grounds irrelevant here).
3. Whether Respondent violated Section 8(a)(5) and (1)
by failing and refusing to honor the SOE’s April 20 and
27, 1993 requests for information
The SOE’s letters to Respondent dated April 20 and 27,
1993, fruitlessly requested (a) copies of ‘‘all documentation
which evaluated the accommodations as requested by Ms.
Walsh and the alternative accommodations presented during
the 2/22/93 grievance meeting’’; and (b) a copy of the air
quality study. Respondent defends the refusal to supply this
information on the ground—as to item (a), on the sole
ground—that Respondent was under no duty to honor the
contractual arbitration provisions with respect to a
predecertification grievance, for use in whose arbitration the
SOE gave as its reason for seeking this material. I have
found (supra sec. II, I,2) that Respondent was under a statu-
tory duty to honor the arbitration provisions with respect to
such grievances. For this reason, and because in any event
Respondent was under a contractual duty to arbitrate the
Walsh grievance (see Bayley-Seton, supra, 308 NLRB at
649), I conclude that Respondent violated Section 8(a)(5) and
(1) by refusing to honor as to both items the SOE’s April
1983 requests. Jervis B. Webb Co., 302 NLRB 316, 318
(1991), enfd. 979 F.2d 855 (9th Cir. 1992). Because the duty
to supply information relevant to a grievance is imposed in
effectuation of the duty to bargain about a grievance, such
duties are coterminous. Thus, in order to insure that the em-
ployer could not commit contractual violations with impunity
during the closing days of the contract’s term, the Board in
Jervis B. Webb stated, ‘‘as the information requested by [the
union] here is necessary for it to process its preexpiration
grievance, [the employer’s] obligation to furnish the re-
quested information continued even after the contract had al-
legedly expired.’’ 302 NLRB at 318.
In my view, this quoted language in Webb defeats Re-
spondent’s reliance on the fact that the requests for informa-
tion in Webb were made and received before the expiration
date set forth in the bargaining agreement under which the
grievance arose. Rather, I read Webb as extending to any re-
quest for information, relevant to a preexpiration grievance,
which the employer would have been under a statutory duty
to honor before the contract expired; see Oliver Insulating
Co., 309 NLRB 725, 726 (1992). For this reason, I agree
with Respondent’s implicit contention that it is immaterial
that the SOE’s April 1993 information requests were made
and received (like the Webb request) before the expiration
date set forth in the bargaining agreement during which the
preexpiration grievance arose. In any event, the April 30,
1993 expiration date of the instant bargaining agreement,
which was effective on its face for a period of 2 years, was
not altered by the March 26 decertification election or the
April 6 certification of results. W. A. Krueger Co., 299
NLRB 914, 914–915, 918, 923 (1990).23 Indeed, Respond-
ent’s answer admits the complaint allegation that the contract
was effective until April 30, 1993.24
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. SOE has at all relevant times been a labor organization
within the meaning of Section 2(5) of the Act.
3. The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All Engineering Associates, Technicians A, Technicians
B, Technicians C, Senior Engineers, Engineers, Engi-
neers A, Engineers B, Quality Assurance Engineers
Junior, Quality Assurance Engineers Associate, Quality
Assurance Engineers, Materials Engineers, Materials
Engineers Associate, Component Test Engineers, RMR
Analysts and RMR Specialists employed by Respondent
at its Pittsburgh, Pennsylvania, facility; excluding
guards, other professional employees and supervisors as
defined in the Act.
4. Pursuant to Section 9(a) of the Act:
(a) At all material times until April 6, 1993, the SOE has
been the exclusive bargaining representative of the unit de-
scribed in Conclusion of Law 3.
(b) At all material times until April 30, 1993, the SOE has
been the exclusive bargaining representative of the unit de-
scribed in Conclusion of Law 3 for the purposes of admin-
istering the current collective-bargaining agreement.
1036 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 So far as the record shows, Respondent did not raise this con-
tention until the hearing before me.
26 Cf. Litton, supra at 209–210, involving grievances as to layoffs
which took place after the bargaining agreement had expired. As to
these grievances, Litton suggested that the presumption of
arbitrability was somewhat weaker than as to grievances which (like
the Walsh grievance) attacked personnel action during the effective
period of the contract. As to the critical date in determining whether
to apply the AT & T presumption or the Litton presumption, I read
Litton as adopting the date on which the attacked personnel action
occurred. Moreover, Respondent’s refusal to arbitrate the Walsh
grievance was set forth in its letter to the SOE dated April 27, 1993,
3 days before the contract expired (see supra, sec. II, I,2). In any
event, my conclusion as to the arbitrability of that grievance would
be the same under either standard.
27 See arts. VII, B and XIII, supra, sec. II, B.
28 Respondent relies on United Steelworkers of America v. Overly
Mfg. Co., 438 F.S. 922 (W.D. Pa. 1977). Cf. Commercial Workers
Local 400 v. Marval Poultry Co., 645 F.S. 1174, 1176–1180 (W.
Va. 1986), affd. 819 F.2d 1138 (4th Cir. 1987). Although Marval
was affirmed by the court of appeals without opinion, see Commer-
cial Workers Local 400 v. Marval Poultry Co., 876 F.2d 346, 348–
349 (4th Cir. 1989).
29 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
(c) At all material times, the SOE has been the exclusive
bargaining representative of the unit described in Conclusion
of Law 3 for the purpose of processing, under the grievance
and arbitration provisions of the collective-bargaining agree-
ment which expired on April 30, 1993, grievances which
arose during the term of that agreement.
5. Respondent has violated Section 8(a)(5) and (1) of the
Act by engaging in the following conduct:
(a) Since about November 4, 1992, failing and refusing to
provide the SOE with a copy of the air quality study.
(b) Since about April 27, 1993, failing and refusing to pro-
vide the SOE with copies of all documentation which evalu-
ated the accommodations as requested by Jacqueline Walsh
and the alternative accommodations presented during the
grievance meeting on February 22, 1993, including but not
limited to cost estimates, equipment purchases, manpower
impacts, building modifications, changes in job assignments,
and work schedule modifications.
(c) Since about April 27, 1993, refusing to arbitrate a
grievance filed on behalf of Jacqueline Walsh, in a manner
and under circumstances which render such refusal a repudi-
ation of the arbitration provisions of the May 1991–April 30,
1993 bargaining agreement with respect to grievances which
arose during the life of that agreement.
6. The unfair labor practices set forth in Conclusion of
Law 5 affect commerce within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY
Having found that Respondent has violated the Act in cer-
tain respects, I shall recommend that Respondent be required
to cease and desist therefrom, and from like or related con-
duct, and to take certain affirmative action which is nec-
essary to effectuate the policies of the Act. Thus, Respondent
will be required to honor the SOE’s request for arbitration
of the Walsh grievance, and to provide the SOE with the in-
formation which Respondent unlawfully withheld in connec-
tion with that grievance. Respondent errs in contending that
the Board has no power to issue such an affirmative order
because Respondent has raised the contention that the Walsh
grievance is not arbitrable under the terms of the contract25
and (according to Respondent) the Board has no power to re-
solve this issue. Contrary to Respondent, the Board ‘‘may
. . . if necessary to adjudicate an unfair labor practice, inter-
pret and give effect to the terms of a collective bargaining
contract. NLRB v. C & C Plywood Corp., 385 U.S. 421
(1967).’’ NLRB v. Strong, 393 U.S. 357, 361 (1969). See
also Litton Business Systems v. NLRB, 501 U.S. 190, 201–
203 (1991); Clarkson Industries, 312 NLRB 349, 350 (1993).
Moreover, I agree with the General Counsel that the griev-
ance is arbitrable under the 1991–1993 bargaining agreement.
‘‘[A]n order to arbitrate should not be denied unless it may
be said with positive assurance that the arbitration clause is
not susceptible of an interpretation that covers the asserted
dispute. Doubts should be resolved in favor of coverage.’’
AT & T Technologies Inc. v. Communications Workers of
America, 475 U.S. 643, 650 (1986); Clarkson, supra.26 It is
true that the arbitrator’s jurisdiction is contractually limited
to ‘‘an alleged violation of a provision of this Agreement,’’
and that the grievance relies on article X of the contract,
which forbade Respondent to ‘‘discharge or suspend any em-
ployee without proper cause.’’ I find however, Walsh’s
grievance to be arbitrable because it complains of action
which constitutes a discharge within the meaning of the con-
tract. Thus, Respondent’s October 19, 1992 letter to Walsh
averred that Respondent was treating her ‘‘alleged inability
to work at the Corporate Drive offices as a separation from
employment effective October 19, 1992.’’ Moreover, com-
pany counsel’s March 10, 1993 letter to the SOE averred that
Walsh ‘‘has not been employed by Union Switch since Octo-
ber 19, 1992 . . . Union Switch . . . acted properly in sepa-
rating Ms. Walsh from employment effective October 19,
1992.’’ Indeed, a finding that Walsh’s October 1992 separa-
tion did not constitute a discharge within the meaning of the
contract would indicate that she continued to accumulate se-
niority until the contract expired in April 1993.27
The Walsh grievance is not rendered nonarbitrable by the
expiration of the contract on April 30, 1993. Assuming with
Respondent that the arbitrator’s power to remedy Walsh’s
discharge would be limited to awarding her backpay between
her discharge on October 19, 1992, and the expiration of the
contract on April 30, 1993,28 the arbitrator might nonetheless
have power to award Walsh backpay for this 6-month period.
See Overly, supra, 438 F.S. at 927; Miscellaneous Drivers &
Helpers Local 610 v. VDA Moving & Storage, 447 F.S. 439,
442–443 (E.D. Mo. 1978); Marval Poultry, supra, 645 F.S.
at 1177–1180.
In addition, Respondent will be required to post appro-
priate notices.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended29
ORDER
The Respondent, Union Switch & Signal, Inc., Columbia,
South Carolina, its officers, agents, successors, and assigns,
shall
1037UNION SWITCH & SIGNAL
30 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.’’
1. Cease and desist from
(a) Failing and refusing to provide its employees’ exclu-
sive statutory bargaining representative, on request, with in-
formation which is necessary for and relevant to the rep-
resentative’s performance of its duties as such representative.
(b) Repudiating as to grievances which arose between May
1, 1991, and April 30, 1993, the arbitration procedure set
forth in the collective-bargaining agreement in effect during
that period between Respondent and the Society of Engi-
neers.
(c) Failing and refusing, on request, to provide the SOE
with information which is necessary for and relevant to arbi-
trating such grievances.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Arbitrate pursuant to the procedure set forth in the
aforesaid collective-bargaining agreement the grievance filed
on behalf of Jacqueline Walsh on October 29, 1992.
(b) Provide the SOE forthwith with the following informa-
tion:
(1) A copy of the report of the air quality study done in
September 1992 at the 5800 Corporate Drive facility.
(2) Copies of all documentation which evaluated the ac-
commodations as requested by Jacqueline Walsh or the alter-
native accommodations presented during the grievance meet-
ing on February 22, 1993, including but not limited to cost
estimates, equipment purchases, manpower impacts, building
modifications, changes in job assignments, and work sched-
ule modifications.
(c) Post at its facilities where employees in the job classi-
fications covered by the 1991–1993 bargaining agreement
between Respondent and the SOE are employed copies of the
attached notice marked ‘‘Appendix.’’30 Copies of the notice,
on forms provided by the Regional Director for Region 6,
after being signed by Respondent’s authorized representative,
shall be posted by the Respondent immediately on receipt
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to such employees
are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT fail or refuse to provide our employees’ ex-
clusive statutory representative, on request, with information
which is necessary for and relevant to the representative’s
performance of its duties as such representative.
WE WILL NOT repudiate as to grievances which arose be-
tween May 1, 1991, and April 30, 1993, the arbitration pro-
cedure set forth in our collective-bargaining agreement with
the Society of Engineers in effect during that period.
WE WILL NOT fail or refuse, on request, to provide the
SOE with relevant information which is necessary for and
relevant to arbitrating such grievances.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of your rights under
Section 7 of the Act.
WE WILL arbitrate pursuant to the procedure set forth in
our 1991–1993 bargaining agreement with the SOE the
grievance filed on behalf of Jacqueline Walsh on October 29,
1992.
WE WILL forthwith provide the SOE with the following in-
formation:
1. A copy of the report of the air quality study done in
September 1992 at the 5800 Corporate Drive facility.
2. Copies of all documentation which evaluated the ac-
commodations as requested by Walsh or the alternative ac-
commodations presented during the February 22, 1993 griev-
ance meeting, including but not limited to cost estimates,
equipment purchases, manpower impacts, building modifica-
tions, changes in job assignments, and work schedule modi-
fications.
UNION SWITCH & SIGNAL, INC.