United Technologies Corp.

National Labor Relations Board - Board Decisions

Feb 28, 1985

274 N.L.R.B. 504 (N.L.R.B. 1985)

504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Technologies Corporation and Industrial Air-
craft Lodge 1746 , Aeronautical Industrial Dis-
trict No. 91 , International Association of Ma-
chinists and Aerospace Workers , AFL-CIO.
Cases 39-CA-789 and 39-CA-956
28 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 30 March 1984 Administrative Law Judge
Harold B . Lawrence issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed cross-excep-
tions and a supporting brief.
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
conclusions ' only to the extent consistent with this
Decision and Order.
The consolidated complaint alleges, inter alia,
that the Respondent violated Section 8(a)(1) and
(5) by refusing to supply certain requested informa-
tion to the Union , Section 8(a)(1) and (3) by twice
suspending an employee , and Section 8(a)(1) by in-
structing its employees to remove buttons protest-
ing an employee suspension . In its answer, the Re-
spondent raised as an affirmative defense that the
complaint allegations should be deferred to the ex-
isting contractual grievance -arbitration procedures.
Deferral was not directed , 2 and the underlying
hearing before the judge was held.
Before the judge 's decision issued , the Board ex-
tended its deferral policies in United Technologies
Corp., 268 NLRB 557 ( 1984). Shortly after issuance
of United Technologies , the Respondent forwarded a
letter to the judge, requesting application of that
Board decision to the instant case. Cognizant of
this recent change in prevailing Board policies on
deferral , the judge requested that the parties brief
the effect of this policy change on the deferral
issues raised by the instant case. In response to the
judge's request , the Respondent argued for com-
plete deferral of the case, while the General Coun-
sel urged limiting deferral to only the 8 (a)(1) and
' In the absence of exceptions, we adopt the judge's findings that the
Respondent's treatment of employee Ruby Graham did not constitute
harassment violative of Sec 8(a)(1) and (3) of the Act In doing so, we
do not pass on whether these allegations should have been deferred to
the parties' contractual grievance procedure in existence Our affirmance
of these findings does not imply that we agree with the judge's analysis
of the deferral issue on this matter
2 The employee suspension allegations admittedly were deferred initial-
ly Later, deferral was rescinded to include these allegations in the same
complaint, pleading the protest buttons allegation as an unfair labor prac-
tice
(3) allegations involving, inter alia, the protest but-
tons and the employee suspensions.
As set forth in his decision, the judge determined
that the Respondent had abandoned its deferral de-
fense by not asserting this defense in oral argument
at trial and in its first posthearing brief to the
judge. The judge also indicated that, had the Re-
spondent not waived this defense, he still would
not consider deferral appropriate for any portion of
this case. The judge then passed on all allegations
of the complaint.
Contrary to the judge, we find that the Respond-
ent properly raised its deferral defense at an appro-
priate stage in the case and preserved its position
for deferral throughout the proceedings. Unlike the
employers in Cutten Supermarket,3 Conval-Ohio,
Inc.,4 and Asbestos Workers Local 22 (Rosendahl,
Inc.),5 who unsuccessfully requested deferral for
the first time in a posthearing brief to the judge or
with the exceptions to the Board, the Respondent
affirmatively pled deferral in its answer and re-
newed its arguments for deferral in its supplemen-
tal brief to the judge. We also observe that the
record itself contains evidence sufficient to deter-
mine the appropriateness of deferral in this case
and that the Respondent's pursuit of its defense to
the judge may have been tempered by the Board's
then prevailing deferral policies. We further note
that the General Counsel does not oppose deferral
on all issues. The General Counsel only opposes
deferral of the 8(a)(5) allegations.
With regard to the particular allegations of
unfair labor practices in this case, we find that the
judge misapplied the principles of United Technol-
ogies and erroneously refused to defer the 8(a)(1)
and (3) allegations involving the two employee sus-
pensions and the protest buttons. Prior to United
Technologies, the Board developed a kind of check-
list of unfair labor practices for possible deferral if
certain other criteria also were satisfied. As seen by
the chronology contained in United Technologies,
the kind of unfair labor practices qualifying as can-
didates for deferral has fluctuated over the years
since Collyer Insulated Wire, 192 NLRB 837 (1971).
In National Radio, 198 NLRB 527 (1972), the
Board extended its deferral policy to cases involv-
ing 8 (a)(3) allegations. But, in General American
Transportation, 228 NLRB 808 (1977), the Board
decided to decline to defer cases alleging violations
of Section 8(a)(1) and (3). Now, with United Tech-
nologies, which overruled General American Trans-
portation, allegations involving Section 8(a)(1) and
3 220 NLRB 507, 509 (1975)
4 202 NLRB 85 (1973)
5 212 NLRB 913 (1974)
274 NLRB No. 72
UNITED TECHNOLOGIES CORP
(3) again are possible candidates for deferral if the
other established deferral criteria are met.
In the present case, the 8(a)(1) and (3) allegations
concerning the employee suspensions and the pro-
test buttons satisfactorily meet the established de-
ferral criteria and are eminently well suited for de-
ferral. We point out that the Respondent and the
Union were parties to a collective-bargaining
agreement which contained provisions identical to
those contractual provisions drawn into question in
United Technologies.6 In this regard, we note that
the contract between the Respondent and the
Union at article VII' establishes the same multistep
grievance procedure with final and binding arbitra-
tion as found in the earlier reported decision. Arti-
cle IV,8 like that found in the reported decision,
provides for the resolution of disputes involving al-
leged discrimination under the Act. The Board ma-
jority in United Technologies interpreted a contract
provision identical to this article IV as encompass-
ing a threat and coercion allegedly violative of
Section 8(a)(1).9
The 8(a)(1) and (3) allegations pertinent here
concern two separate suspensions of Union Stew-
ard Lucille St. Marie, who was purportedly disci-
plined for conduct arising out of the performance
of her steward functions.10 The remaining 8(a)(1)
allegation involves instructions from supervisors to
various employees to remove the buttons they
wore in protest of St. Marie's second suspension,
referred to above. We find that these allegations
are encompassed by the discrimination language of
article IV of the parties' contract and, thus, amena-
ble to the applicable grievance mechanisms. More-
6 This reported decision involves operations of the Respondent not in-
volved herein
7 Art VII, sec 1, states in pertinent part
In the event that a difference arises between the company, the union,
or any employee concerning the interpretation , application or com-
pliance with the provisions of this agreement, an earnest effort will
be made to resolve such difference in accordance with the following
procedure which must be followed
Art VII, sec 3(a), states in relevant part
[T]he following grievances , if not settled at Written Step 4 of Sec-
tion 1 of this Article, shall be submitted to arbitration upon the re-
quest of either party hereto filed in accordance with the provisions
of this Article I A grievance alleging violation of Article IV
Art VII, sec 3(d), states
[T]he decision of the arbitrator shall be supported by substantial evi-
dence on the record as a whole and shall be final and conclusive and
binding upon all employees , the company and the union
8 Art IV states in pertinent part
The company and the union recognize that employees covered by
this agreement may not be discriminated against in violation of the
provisions of the Labor Management Relations Act, 1947, as amend-
ed, Title VII of the Civil Rights Act of 1964, as amended, the Age
Discrimination in Employment Act of 1967, as amended , and the
Vocational Rehabilitation Act of 1973
'Accord Postal Service, 270 NLRB 979 (1984)
10 The first suspension of Union Steward St Marie resulted from her
comments during the processing of an employee grievance Her second
suspension arose from her questioning a foreman about a job assignment
made to another employee
505
over, the Respondent has expressed its willingness
to arbitrate these matters and impliedly has waived
any timeliness provisions of the applicable griev-
ance-arbitration procedures. Accordingly, consist-
ent with United Technologies, we shall order that
these 8(a)(1) and (3) allegations be deferred to the
parties' grievance-arbitration procedure and that
the related portions of the consolidated complaint
be dismissed. As in United Technologies, we shall
retain jurisdiction for the purpose of entertaining a
motion for further consideration upon a showing
that either (1) the disputes have not been resolved
in the grievance procedure or submitted to arbitra-
tion, or (2) the grievance or arbitration procedures
have not been fair and regular or have reached a
result which is repugnant to the Act.
We, however, conclude that the 8(a)(5) allega-
tions are not properly deferrable. United Technol-
ogies Corp., supra, in broadening the scope of defer-
ral, did not vary the law concerning 8(a)(5) allega-
tions involving an employer's refusal to furnish in-
formation requested by an exclusive collective-bar-
gaining representative. See General Dynamics Corp.,
268 NLRB 1432 (1984), and General Dynamics
Corp., 270 NLRB 839 (1984). The Board recently
indicated that it is unwilling to institute a "two-
tiered arbitration process" whereby a request for
information relevant to a grievance and then the
underlying grievance itself is submitted to the par-
ties' grievance-arbitration mechanisms. General Dy-
namics Corp., 268 NLRB at fn. 2. We observe that
the Union's separate information requests were for
the purpose of pursuing pending or future employ-
ee grievances. Thus, under current Board princi-
ples, the 8(a)(5) allegations involving the refusal to
supply requested information are not appropriately
deferrable.
We next turn to the judge's findings relating to
the 8(a)(5) allegations. The Union requested certain
information from the Respondent which the Union
claimed was relevant to the processing of griev-
ances filed separately on behalf of unit employees
Deborah Belesano, Joseph Cotnoir, Ruby Graham,
and Michael Lovely. The Respondent refused to
supply the requested information. The judge found
violations relating to the Respondent's refusal to
comply with the Belesano, Cotnoir, and Graham
requests. He found no violation relating to the
Lovely request. As more fully explained below, we
affirm only his findings relating to the Belesano
and Cotnoir requests. We find no violation regard-
ing the Graham request, and we shall remand the
Lovely request for further findings and conclusions
of law by the judge in light of the rationale dis-
cussed below.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is well established that an employer has an ob-
ligation to supply requested information which is
reasonably necessary to the exclusive collective-
bargaining representative's responsibilities. NLRB
v. Acme Industrial Co., 385 U.S. 432 (1967); NLRB
v. Truitt Mfg. Co., 351 U.S. 149 (1956). Included in
such responsibilities is the processing and evaluat-
ing of employee grievances. The Board has held
that an employer is obligated to furnish information
requested for the purpose of handling grievances.
United-Carr Tennessee, 202 NLRB 729 (1973);
Safeway Stores, 236 NLRB 1126 (1978)'. An actual
grievance need not be pending at the time of the
information request, nor must the information re-
quested clearly dispose of the grievance. Ohio
Power Co., 216 NLRB 987, 991 (1975); Los Angeles
Chapter, Sheet Metal Contractors, 246 NLRB 886,
888 (1979). The standard for the union's entitlement
to the information requested is a liberal, discovery-
type test as to whether the information bears upon
the union's determination to file a grievance or is
helpful in evaluating the merits of the grievance
and the propriety of pursuing the grievance to arbi-
tration, Los Angeles Chapter, Sheet Metal Contrac-
tors, supra.
In agreement with the judge, we find that the
Belesano and Cotnoir information requests were rea-
sonably necessary to the Union's collective-bar-
gaining functions, i.e., processing Belesano's and
Cotnoir's grievances. Employee Belesano had filed
two grievances. One protested the Respondent's
promotional and transfer policies as being discri-
minatorily applied and the other alleged misrepre-
sentations by the Respondent in connection with
the first grievance. The Union requested a copy of
an employee record to ascertain whether a promo-
tion had been offered in disregard of contractual
promotional criteria. Employee Cotnoir had filed a
grievance disputing the accuracy of his recent sug-
gestion award. The Union requested various pro-
duction records to ascertain the accuracy of Cot-
noir's award.
For the Belesano and Cotnoir requests, the Re-
spondent has not disputed their relevance to the
pending grievances in question.11 Rather, the Re-
spondent has defended its refusals in these matters
on the basis that the grievances of Belesano and
Cotnoir were not arbitrable under the applicable
contract, citing Otis Elevator Co., 269 NLRB 891
(1984), in support.
II Because the Union's requests for information concerning the Bele-
sano and Cotnoir grievances were submitted at the second step of the
grievance procedure, the Union's right to this information was not con-
tractually waived unlike the information concerning the Graham griev-
ance discussed later
The Respondent's arbitrability defense is without
merit, and its reliance on Otis Elevator is mis-
placed.12 The Board consistently has rejected simi-
lar arbitrability arguments. United-Carr Tennessee,
supra; Worcester Polytechnic Institute, 213 NLRB
306 (1974); Safeway Stores, supra; PPG Industries,
255 NLRB 296 (1981). The Board's reasoning in
this area is best expressed as follows:
It is the teaching of United-Carr Tennessee and
Worcester Polytechnic that, before a union is put
to the effort of arbitrating even the question of
arbitrability, it has a statutory right to poten-
tially relevant information necessary to allow
it to decide if the underlying grievances have
merit and whether they should be pursued at
all. [Safeway Stores, 236 NLRB 1126 at fn. 1.]
Requiring the information to be supplied when the
employer contends the underlying grievance is not
arbitrable does not place the employer at a disad-
vantage. The employer need not recede from its
contract interpretation nor is it bound to any par-
ticular construction of the contractual provisions at
issue when it must furnish the requested informa-
tion for a grievance which may not be arbitrable.
United-Carr Tennessee, supra at 731. Accordingly,
the Union was entitled to the information it sought
concerning the Belesano and Cotnoir grievances.
In disagreement with the judge, we find that the
Graham information request was not related to any
of the four grievances concerning Graham pending
when the request was submitted. On 7 July 1981
employee Graham filed four separate grievances
claiming various kinds of mistreatment from Super-
visor Robbins. These grievances addressed very
specific incidents of harassment by Robbins. The
Union requested several times, the last occasion
being in August 1981, a letter written by Graham's
immediate supervisor, Larry Majors, to his superi-
or, Supervisor Robbins. The letter described
Majors' assessment of Graham's attitude and per-
formance and Majors' version of an incident which
gave rise to a disciplinary warning issued to
Graham by Robbins 6 July 1981.13 It is undisputed
that none of the four pending grievances of
Graham contained any reference to her 6 July 1981
disciplinary warning. It is further undisputed that
12 In Otis Elevator, the Board (Member Dennis concurring) recently
held that an employer lawfully refused to bargain with a union over its
decision to consolidate and transfer its research and development func-
tions from one facility to another In view of this holding, the Board con-
cluded that the employer was not obligated to provide certain informa-
tion requested by the union for the purpose of the union's bargaining
over the employer's relocation decision With the need for the informa-
tion gone, the employer was not required to furnish the data
13 Majors' letter was submitted by the Respondent as a record exhibit,
provided to the parties at the hearing
UNITED TECHNOLOGIES CORP
the actual grievance on Graham's 6 July warning
was filed 10 December 1981, 5 months after the
warning was issued to her. As found by the judge,
the Union's stated purpose for seeking access to the
Majors' letter was to prepare for the filing of a
future grievance relating to the warning itself and
not because it had some bearing on any of Gra-
ham's pending grievances.14 In these circum-
stances, we are unable to see the relevance of
Majors' letter to the pending grievances.
The judge correctly observed that generally a
union has a right to information in connection with
the preparation of a future grievance and that
Majors' letter was arguably relevant to Graham's
grievance filed 10 December 1981. However, the
judge failed to consider whether the Union's right
to the information had previously been waived by
the Union. Upon our examination of the record, we
find the Union's right to this letter at this step of
the grievance procedure was waived.
A union may contractually relinquish a statutory
bargaining right if the relinquishment is expressed
in clear and unmistakable terms. Timken Roller
Bearing Co., 138 NLRB 15, 16 (1962). In C & P
Telephone Co. v. NLRB, 687 F.2d 633, 636 (2d Cir.
1982), enfg. 259 NLRB 225 (1981), the court
stated:
[N]ational labor policy disfavors waivers of
statutory rights by unions and thus a union's
intention to waive a right must be clear before
a claim of waiver can succeed. Waivers can
occur in any of three ways: by express provi-
sion in the collective bargaining agreement, by
the conduct of the parties (including past prac-
tices, bargaining history, and action or inac-
tion), or by a combination of the two. The lan-
guage of a collective bargaining agreement
will effectuate a waiver only if it is "clear and
unmistakable" in waiving the statutory right.
[Citation omitted.]
The mere existence of a grievance procedure is
not sufficient to constitute a waiver of a union's
statutory right to request information from the em-
ployer. Timken Roller Bearing Co., supra; Hekman
Furniture Co, 101 NLRB 631, 632 (1952).
With these principles in mind, we have examined
article VII, section 1, written step 215 of the col-
14 No exceptions to this finding were filed
is Art VII, sec i, written step 2 provides , in pertinent part
The company will produce at this step of the grievance procedure at
its own cost the records it considers pertinent and necessary to the
resolution of the grievance If the senior steward considers other rel-
evant records to be necessary to the resolution of the grievance, the
company will produce such additional records, without cost, if it
does not impose an unreasonable burden on the company to obtain
such records Where the senior steward ' s request for additional
records does impose an unreasonable burden on the company, the
507
lective-bargaining agreement between the Respond-
ent and the Union and Letter X, 16 which is a letter
of understanding supplementing their agreement
We construe this provision and document as consti-
tuting a clear and unmistakable waiver on the part
of the Union for information in anticipation of
filing an employee grievance.
Article VII, section 1, written step 2 provides
for the information to be submitted to the Union
which the Respondent considers pertinent and nec-
essary to resolution of the grievance and other in-
formation which the Union requests for the same
purpose. Letter X embodies an agreement whereby
in exchange for certain records and documents at
certain specified times without prior advance re-
quests submitted, the Union will forgo other re-
quests for information from the Respondent. In
particular, paragraph 3 of Letter X shows that the
Union relinquished a right to all information
except: the items enumerated in Letter X itself in
paragraphs I and 2; the items referred to by the
contract itself (e.g., art. VII, sec. 1, written step 2);
and those items concerning pensions or insurance
necessary to bargaining for future collective-bar-
gaining agreements.
The request for Majors' letter does not fit any
exceptions to the Union's waiver of information.
The request for Majors' letter was for information
in anticipation of filing a later grievance concern-
ing Graham's warning. Written communications
between supervisors are not covered by the items
enumerated in Letter X, paragraphs 1 and 2. The
subject matter of Majors' letter does not concern
pensions or insurance necessary for bargaining pur-
poses. In light of the above, we find that the Union
waived its right to the Graham information.
We also must reverse the judge's findings with
respect to the Lovely information request. The
Union filed a grievance protesting the suspension
union agrees to reimburse the company for the actual costs incurred
by the company in locating and procuring such additional records If
the union wishes to be provided with photocopies of records so pro-
duced, it will pay to the company the actual costs of reproduction
16 Letter X is an agreement between the Union and the Respondent
effective 28 November 1977 In par (1) of the letter, the Respondent has
agreed to furnish the Union with the name, clock numbers, and home ad-
dresses of unit employees in January of each year and the home addresses
of nonunit employees who are transferred to unit positions on a monthly
basis In par (2) of the letter, the Respondent has agreed to furnish
monthly copies of the following records "employee service," "put-on,"
"change of status," "termination," "employee performance," "perform-
ance appraisals," and "physical demands " Par (3) provides
(3) In consideration of the above, it is understood and agreed that,
except as otherwise provided for in the aforesaid agreement, the
Union shall not request nor receive during the life of that said agree-
ment any other information, data , or listings related to the wages,
hours or working conditions of employees covered by this agree-
ment This waiver, however, shall not affect any right the Union
may have with respect to information concerning pensions or insur-
ance necessary to bargaining for agreements in the future
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and subsequent discharge of employee Lovely. The
Union requested various records, including supervi-
sor audit reports, audit departmental procedures,
and investigation reports. The Respondent has re-
fused to supply the requested data. One of its rea-
sons for its refusal is that the Respondent claims
that these materials do not exist.
At the hearing the parties disputed the existence
of these materials , and conflicting evidence in sup-
port of their respective positions was submitted.
Without ruling as to whether any of these materials
actually existed , the judge found that none had to
be produced in any event because they did not per-
tain to the issues of the Lovely grievances which
had been narrowed by the Union ' s defense in
behalf of Lovely.
The judge observed that the materials requested
by the Union pertained to Lovely's guilt. The
Union 's position regarding Lovely was that im-
proper supervision had fostered his alleged miscon-
duct and the need for severe punishment. The
judge found that, in view of the Union 's position,
Lovely's guilt was not at issue . The judge then rea-
soned that , because the request did not relate to an
issue in the grievance procedure , the Respondent
could refuse to supply the data otherwise relevant.
According to the judge , the Union 's defenses to be
argued for these grievances narrowed the scope of
its entitlement to this information.
We find the judge erred and misconstrued the
applicable Board standards on relevancy . As previ-
ously discussed herein , the test for relevancy is
whether the information assists in evaluating the
merits of the grievance and the propriety of pursu-
ing the grievance to arbitration . The Union's de-
fenses on behalf of the grievant do not constitute a
waiver of the right to information. Regardless of its
defenses , the Union is still permitted to ascertain if
the disciplinary action complied with the applicable
contractual standards . Information is not rendered
irrelevant by the particular defenses pursued at the
grievance-arbitration proceedings . Conrock Co., 263
NLRB 1293 (1982).
Accordingly , we shall remand to the judge that
portion of the case regarding the Lovely informa-
tion request for findings of fact pertaining to the
existence of the information requested , making
credibility resolutions where necessary , and for
conclusions of law in light of the Board principles
reiterated herein , addressing any applicable de-
fenses which timely and properly were raised by
the Respondent.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusions of Law
3 and 4 of the judge's decision.
"3 By refusing to furnish an employee record
section of Robert Jones' personnel record in con-
nection with the grievances of Deborah Belesano
and certain production records, time studies, and
other data requested in connection with the griev-
ance of Joseph Cotnoir, the Respondent has en-
gaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1) and
Section 2(6) and (7) of the Act.
"4. The General Counsel has failed to prove that
the Respondent unlawfully refused to furnish the
requested Supervisor Majors' letter in connection
with the grievances of Ruby Graham."
THE REMEDY
Having found that the Respondent has violated
Section 8(a)(1) and (5) of the Act, we shall order it
to cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act.
The Respondent is directed forthwith to turn
over to the Union the information requested in
connection with the grievances of Deborah Bele-
sano and Joseph Cotnoir.
ORDER
The- National Labor Relations Board orders that
the Respondent , United Technologies Corporation,
Hartford, Connecticut , its officers , agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Industrial Aircraft
Lodge 1746, Aeronautical Industrial District No.
91, International Association of Machinists and
Aerospace Workers, AFL-CIO as the exclusive
bargaining representative of the employees in the
following bargaining unit by refusing to furnish it
with information that it requests which is relevant
and reasonably necessary to the processing of em-
ployee grievances:
All production and maintenance employees of
the United Technologies Corporation , Pratt &
Whitney Aircraft Group (Commercial Prod-
ucts Division and Manufacturing Division) at
their facilities in and around East Hartford,
Connecticut (including the DE Lab , the Will-
goos Lab, and facilities located at Manchester,
Rocky Hill, and Bradley Field), and Power
Systems Division at its facility located at
South Windsor , Connecticut , including inspec-
tors, crib attendants , material handlers , factory
clerks and working leaders , but excluding
timekeepers, engineering and technical em-
ployees, laboratory technicians , foremen's
clerks, salaried office and clerical employees,
UNITED TECHNOLOGIES CORP
medical department employees, first-aid em-
ployees, plant protection employees, execu-
tives, plant superintendents, division superin-
tendents, general foremen, foremen, assistant
foremen, group supervisors, watch engineers,
and all other supervisory employees with au-
thority to hire, promote, discharge, discipline,
or otherwise effect changes in the status of
employees, or effectively recommend such
action.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Furnish, in timely fashion, to the Union, the
following information: the production records, time
studies, and other data requested by the Union in
connection with the grievance of Joseph Cotnoir
and the "Employee Remarks" section of the per-
sonnel record of employee Robert Jones requested
by the Union in connection with the grievances of
Deborah Belesano.
(b) Post at its facility in Hartford, Connecticut,
copies of the attached notice marked "Appen-
dix."17 Copies of the notice, on forms provided by
the Officer in Charge of Subregion 39, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly 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 the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(c) Notify the Officer in Charge in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
The complaint is dismissed with respect to the
allegations pertaining to the two suspensions of Lu-
cille St. Marie and the instructions to employees to
remove buttons protesting the second suspension of
Lucille St. Marie.
Jurisdiction of these allegations regarding St.
Marie's suspensions and the protest buttons is
hereby retained for the limited purpose of enter-
taining an appropriate and timely motion for fur-
ther consideration on a proper showing that either
(a) the dispute has not, with reasonable promptness
after the issuance of the Decision and Order, either
17 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" Shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
509
been resolved by amicable settlement in the griev-
ance procedure or submitted promptly to arbitra-
tion, or (b) the grievance or arbitration procedures
have not been fair and regular or have reached a
result which is repugnant to the Act.
IT IS ALSO ORDERED that the allegations pertain-
ing to the Union's request for information in con-
nection with the grievances of Michael Lovely be
remanded to Administrative Law Judge Harold B.
Lawrence for the limited purpose of making credi-
bility determinations, findings of fact, and conclu-
sions of law in accordance with this Decision and
Order.
IT IS FURTHER ORDERED that the judge shall pre-
pare and serve on the parties a supplemental deci-
sion setting forth the resolution of such credibility
issues, findings of fact, and conclusions of law and
recommended order with respect thereto. Copies
of such supplemental decision shall be served on all
parties, after which the provision of Section 102.46
of the Board's Rules and Regulations shall be ap-
plied.
In all other requests the complaint is dismissed.
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 ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Industrial
Aircraft Lodge 1746, Aeronautical Industrial Dis-
trict No. 91, International Association of Machin-
ists and Aerospace Workers, AFL-CIO, as the ex-
clusive bargaining representative of the employees
in the following bargaining unit by refusing to fur-
nish it with information that it requests which is
relevant and reasonably necessary for the process-
ing of employee grievances:
All production and maintenance employees of
the United Technologies Corporation, Pratt &
Whitney Aircraft Group (Commercial Prod-
ucts Division and Manufacturing Division) at
their facilities in and around East Hartford,
Connecticut (including the DE Lab, the Will-
goos Lab, and facilities located at Manchester,
Rocky Hill, and Bradley Field), and Power
Systems Division at its facility located at
South Windsor, Connecticut, including inspec-
tors, crib attendants, material handlers, factory
clerks and working leaders, but excluding
timekeepers, engineering and technical em-
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees, laboratory technicians, foremen's
clerks, salaried office and clerical employees,
medical department employees, first-aid em-
ployees, plant protection employees, execu-
tives, plant superintendents, division superin-
tendents, general foremen, foremen, assistant
foremen, group supervisors, watch engineers,
and all other supervisory employees with au-
thority to hire, promote, discharge, discipline,
or otherwise effect changes in the status of
employees, or effectively recommend such
action.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7
of the Act.
WE WILL furnish, in timely fashion, to the Union
the production records, time studies, and other data
requested by the Union in connection with the
grievance of Joseph Cotnoir and the "Employee
Remarks" section of the personnel record of em-
ployee Robert Jones requested by the Union in
connection with the grievances of Deborah Bele-
sano.
UNITED TECHNOLOGIES CORPORA-
TION
DECISION
STATEMENT OF THE CASE
HAROLD B. LAWRENCE, Administrative Law Judge.
This case was tried before me on May 9, 10, It, and 12,
1983, at Hartford, Connecticut, on an amended consoli-
dated complaint issued April 15, 1983. The charges were
filed on August 11 and December 15, 1981, by Industrial
Aircraft Lodge 1746, Aeronautical Industrial District
No. 91, International Association of Machinists and
Aerospace Workers, AFL-CIO (the Union). The Re-
spondent, United Technologies Corporation, at its Pratt
and Whitney Plant in East Hartford, Connecticut, is al-
leged to have violated Section 8(a)(1), (3), and (5) of the
National Labor Relations Act (the Act).
Section 8(a)(1) and (5) of the Act are alleged to have
been violated by Respondent's treatment of two shop
stewards, Lucille St. Marie and Ruby Graham. It is con-
tended that St. Marie was discriminatorily suspended on
two separate occasions, on May 4 and November 30,
1981.1 With respect to Graham, it is contended that Re-
spondent's course of conduct toward her since June 1
amounted to harassment: the attribution to her of certain
unacceptable work, the misscheduling of first-step griev-
ance proceedings, the issuance of an adverse evaluation
of her work, the imposition of a requirement that she
sign for each separate document when requesting em-
ployee personnel files in her capacity as union shop stew-
ard, and the issuance of a warning to her. This is claimed
to constitute harassment inflicted upon her because of
her union activities and in order to discourage employees
from engaging in protected activities
Section 8(a)(1) of the Act is alleged to have been vio-
lated by instruction to employees to remove union but-
tons. Section 8(a)(1) and (5) is alleged to have been vio-
lated by refusal to furnish information and documents re-
quested by the Union in connection with four pending
grievances by various employees.
Respondent denied all allegations of wrongdoing and
statutory violation and alleged certain affirmative matter
in its denials, which are considered in connection with
the particular allegations to which they pertain. Re-
spondent also pleaded, as an affirmative defense, citing
Dubo Mfg. Corp., 142 NLRB 431 (1963), that "each and
every matter" referred to in the amended consolidated
complaint involved "disputes concerning the interpreta-
tion and application of the collective bargaining agree-
ment between the Company and the Union" and should
therefore be referred to resolution by the grievance pro-
cedure agreed to by the parties in the collective-bargain-
ing agreement, "which culminates in final and binding
arbitration."
Respondent did not press the defense at the hearing,
waiving opening and closing statements wherein its
merits might have been argued, made no motion and in-
troduced no evidence with respect to it, and did not
mention it in Respondent's posthearing brief. According-
ly, the defense is deemed abandoned. It would have been
dismissed on the merits in any event.
The resolution of disputes by the parties themselves is
to be encouraged under appropriate circumstances,2 as
when a collective-bargaining agreement expressly pro-
vides for grievance procedures which culminate in arbi-
tration.3 The collective-bargaining agreement between
Respondent and the Union refers some 29 categories of
disputes to arbitration.' Nevertheless, the issues relating
a United Technologies Corp, 268 NLRB 557 (1984), see Collyer Insulat-
ed Wire, 192 NLRB 837 (1971)
United Aircraft Corp, 204 NLRB 879 (1973), enfd 525 F 2d 237 (2d
Cir 1975)
Sec 1 of art VII of the collective -bargaining agreement , entitled
"Grievance Procedure," provides as follows
Section 1 In the event that a difference arises between the company,
the union or any employee concerning the interpretation, application
or compliance with the provisions of this agreement , an earnest
effort will be made to resolve such difference in accordance with the
following procedure which must be followed
A multistep grievance procedure is then set forth Sec 3(a) of art VII
provides,
The following grievances , if not settled at written Step 4 of Section
1 of this Article, shall be submitted to arbitration upon the request of
either party filed in accordance with the provisions of this Article
A list is then set forth of 29 types of disputes Sec 4 provides that the
arbitrator's jurisdiction "shall be limited to the specific grievances listed
in Subsection (a) of Section 3 " With one exception , these relate to mone-
tary matters easily disposed of by arbitration The solitary exception per-
tains to disputes arising under art IV of the agreement, providing inter
alia, that Respondent and the Union recognize that employees covered
by the agreement may not be discriminated against in violation of the
provisions of the Labor -Management Relations Act, 1947 as amended,
Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimi-
nation in Employment Act of 1967, as amended, and The Vocational Re-
habilitation Act of 1973
i All dates are in 1981 except as hereinafter otherwise indicated Continued
UNITED TECHNOLOGIES CORP
to Ruby Graham, Lucille St. Marie, and the button cam-
paign do not primarily relate to the parties' private inter-
ests, questions of contractual interpretation and applica-
tion or policing of the contract. Instead, they involve
acts and motivations of Respondent's personnel which, if
proved, would affect basic rights of employees under the
Act and would evince an intention to evade legal and
contractual requirements. The gravamen of the allega-
tions is not misinterpretation or misapplication of con-
tractual terms, but alleged courses of conduct, some of it
grossly tortious and in bad faith, calculated to undermine
employees' legal rights and circumvent lawful process-
es 5
The collective-bargaining agreement expressly pro-
vides that disputes arising from Respondent's refusal to
furnish information be arbitrated. This provision would
normally prevail in the three grievances in which arbitra-
tion was not held, even over arguments that mean send-
ing the parties back to the very procedures obstructed by
Respondent or that the Union's right to the information
which it requested derives from the Act rather than from
the agreement.6 However, Respondent itself does not
appear to have requested arbitration and the issues have
already been litigated before me While that would not
necessarily preclude deferral to arbitration, in the present
case it would be wasteful in the extreme because the res-
olution of the original grievances in which the informa-
tion was requested would be delayed while arbitrators
handled four new proceedings relating to the information
request despite the fact that I have already decided the
issues.
Accordingly, the affirmative defense having been
waived and the matters having been heard and resolved
in this forum, where most of them belong, the defense is
dismissed.
The parties were afforded full opportunity to be heard;
to call, examine, and cross-examine witnesses; and to in-
troduce any relevant evidence Posthearing briefs have
been filed by the General Counsel and Respondent.
On the entire record and based on my observation of
the witnesses and consideration of the briefs submitted, I
make the following
FINDINGS OF FACT
I. JURISDICTION
There is no issue as to jurisdiction. The amended con-
solidated complaint alleges and Respondent admits that
Respondent is a Delaware corporation having its main
office in Hartford, Connecticut. Its Pratt and Whitney
subsidiary operates a facility located in East Hartford
where it engages in the manufacture and nonretail sale
and distribution of aircraft engines and related parts
During the calendar year ending December 31, 1981, Re-
The provision for furnishing of information requested in connection
with written step 2 commits the company to produce at this step of the
grievance procedure the records it considers pertinent and necessary to
the resolution of the grievance If the senior steward considers other rele-
vant records to be necessary to the resolution of the grievance, the com-
pany will produce such additional records
5 Joseph T Ryerson & Sons, 199 NLRB 461 (1972)
6 United Carr-Tennessee, 202 NLRB 729 (1973)
511
spondent sold and shipped from the East Hartford facili-
ty in the course of its business products, goods, and ma-
terials valued in excess of $50,000 directly to points out-
side the State of Connecticut. It is alleged and admitted,
and I accordingly find, that Respondent is now and has
been at all material times herein an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act and that the Union is now and has been at
all material times herein a labor organization within the
meaning of Section 2(5) of the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES?
A. Lucille St. Marie
Respondent admits having suspended Lucille St. Marie
on May 4 and November 30, but denies that in doing so
it violated the Act.
Lucille St. Marie has worked at the Pratt and Whitney
plant in East Hartford since February 20, 1979, and is
currently a multimachine operator in department 1423.
She was elected a shop steward in September 1979. Her
jurisdiction covers all the 1400 groups in the shop. It is
her responsibility to file grievances with the Company
on behalf of the employees, to police the collective-bar-
gaining agreement, and to organize workers. She is nor-
mally involved in the oral step and the first written step
of grievance proceedings. The collective-bargaining
agreement provides that an "earnest effort" will be made
to resolve differences between the Company, the Union
or any employee concerning matters within the provi-
sions of the agreement.8 An employee having a griev-
ance may take it up directly with his foreman or he may
initially bring it to the shop steward, who will then take
it up orally with the foreman on his behalf. If no accom-
modation is reached at the oral step, within 5 working
days, excluding Saturdays, Sundays, and holidays, after
the foreman's disposition, the matter must be reduced to
writing on a form provided This is written step 1. The
dispositions made at written step 1, 2, and 3 of the griev-
ance procedure are noted on the form and signed by the
representatives of the Company and the Union in attend-
ance at these steps. In a written step 1, the foreman must
furnish a written answer on the form within 5 working
days after presentation of the grievance If the matter is
4 The facts of the case as hereinafter set forth are a narrative compos-
ite of the undisputed and credited testimony, admissions in the answers,
and data contained in the exhibits
The appropriate bargaining unit is defined as follows
All production and maintenance employees of the United Technol-
ogies Corporation, Pratt & Whitney Aircraft Group (Commercial
Products Division and Manufacturing Division) at their facilities in
and around East Hartford, Connecticut (including the DE Lab, the
Willgoes Lab, and facilities located at Manchester, Rocky Hill, and
Bradley Field), and Power Systems Division at its facility located at
South Windsor, Connecticut, including inspectors, crib attendants,
material handlers, factory clerks and working leaders, but excluding
timekeepers, engineering and technical employees, laboratory techni-
cians, foremen's clerks, salaried office and clerical employees, medi-
cal department employees, first-aid employees, plant protection em-
ployees, executives, plant superintendents, division superintendents,
general foreman, foremen, assistant foremen, group supervisors,
watch engineers, and all other supervisory employees with authority
to hire, promote, discharge, discipline, or othewise effect changes in
the status of employees, or effectively recommend such action
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not resolved, it goes to the next regularly scheduled step
2 meeting, at which it is taken up by the senior steward
representing the plant area and the shop steward with
the superintendent for that plant area and a personnel ad-
visor. These are normally scheduled on a weekly basis
A decision must be rendered within 5 working days
The 'first suspension imposed on St. Marie arose out of
her activities as shop steward in connection with the oral
step and written steps I and 2 of a grievance filed by an
employee named Sarah Thomas. The suspension was im-
posed for use of foul language by St. Marie toward a su-
pervisor in the course of the grievance procedure.
Sarah Thomas was a longtime employee on the first
shift who had been working on the burr bench She de-
veloped a hip problem and respiratory trouble She suf-
feied from asthma and had been referred to the medical
department on a number of occasions. A respirator had
been tried unsuccessfully, to see if she could remain at
the burr bench. The medical department finally restricted
the type of activity in which she was permitted to
engage and recommended that she be reassigned. Man-
agement proposed to reassign her to vein-bending, a type
of quality control check, and in connection with the
change asked her to transfer from the first shift to the
second shift.
The proposed move was unsatisfactory to Thomas be-
cause it involved a reduction from grade 9 to a lower-
paying position, conflicted with evening ministerial work
in which she and her husband had been engaged for
many years, and made it difficult to fulfill her family re-
sponsibilities. It had such far-reaching effects on her way
of living that she feared she might be compelled to
refuse available work.
The oral step of the grievance was handled on April 9,
1981, immediately after John Moriglioni, the general
foreman, directed Thomas to report on the second shift.
She requested that a steward be called and Lucille St
Marie entered the picture. St. Marie told Thomas' imme-
diate foreman, Donald Risi, that it would be a hardship
for Thomas to transfer and she inquired as to whether or
not another first-shift position was available Risi's re-
sponse was that there was nothing he could do and so a
grievance form was written up, as follows:
That the company is discriminating against me be-
cause of my medical restrictions caused by compa-
ny working conditions and environment by forcing
me to accept work on second shift thereby causing
me undue hardship and mental stress.
The remedy requested was "that the company provide
me with work on first shift and that this discriminatory
practice cease and desist."
The proceedings on the written first step were actually
conducted in two parts, at which the persons present
were Moriglioni, Risi, St. Marie, and Thomas On the
first occasion, St. Marie raised certain pertinent questions
which arose from her belief that circumstances permitted
Thomas' retention on the first shift. Moriglioni indicated
he would look into the prospect for keeping her on that
shift and the proceedings were put off to enable him to
make the investigation He did not answer any of the
questions she had raised. When they met again on April
25, he had no new proposal He listened to St Marie
raise the same questions, said that he had discovered
nothing with respect to other first-shift employment for
Thomas, and remained impassive when St. Marie repeat-
ed her questions. He remained equally uncommunicative
when Thomas herself made a plea
Moriglioni did not testify at the hearing, but Risi gave
an account of what happened from which it appears that
St Marie kept repeating the same questions and Morig-
honi kept repeating the same answers: that the personnel
department had been investigating and was trying to do
something about Thomas' situation. Marie wanted to
know where they were looking, who was working on it,
and who was trying to see that the employee stayed on
the first shift. This went on at both of the first step ses-
sions. Risi testified, "Lucille's questions were basically
who was trying to do something for her and where were
they looking And she got the same answers and she
continually repeated her questions And she was being
given the same answers." The answers which she was
getting, according to Risi, were that supervision was in-
vestigating and looking in various areas within the shop
to try to find a place for Thomas on the first shift She
specifically pointed out to Moriglioni that another em-
ployee was retiring from the same job in the first shift in
the same work center the following month so that an
opening for Thomas existed on the first shift and that
they had enough people already working in vein-bending
on the second shift, so that Thomas was not actually
needed there. According to St. Marie, "I posed those
questions to the General Foreman and he just sat there.
He didn't say anything and it seemed like some time
went by, just a few seconds, but there was silence."
When she asked why he did not respond to the point she
made, he simply asked for the grievance form. She re-
fused to give it to him. He therefore took a separate
sheet of white paper, wrote "grievance examined" and
dated it April 25, 1981, at 11 25 a.m
Risi testified that the meaning "was brought to an
end" when St. Marie called the general foreman "a fuck-
ing incompetent asshole." Risi testified that his disbelief
was such that he asked her what she had said and she
told him that she had called Moriglioni "a fucking in-
competent asshole " Moriglioni became red in the face
and ended the meeting when she repeated it the second
time
On May 4, 1981, St. Marie was suspended for 5 work-
ing days (May 5, 6, 7, 8, and 11, 1981) "for directing vile
and abusive language toward general foreman Morig-
lioni. Any further recurrence of this nature will be cause
for more severe disciplinary action."
Without endorsing St. Marie's use of the epithet
quoted, I hold that Respondent improperly suspended
her. Her language was vile, but uttered at a time when
she was clearly engaged in the performance of her duty
as shop steward, attempting to obtain answers to specific
questions directed toward the problem of Sarah Thomas'
reassignment. In pressing her inquiries as to who was
working on the situation and what was actually being
done about it, she was soliciting information to which
UNITED TECHNOLOGIES CORP
she was entitled She was trying to avoid a runaround
and was trying to achieve a result Moriglioni's attitude
and his stonewalling are claimed by St. Marie to have
been the cause of her anger and loss of temper: She re-
fused to be put off by the evasive answers she was get-
ting Since she was acting in the course of her duties as
shop steward, her transgression into improper conduct
and language, clearly in the heat of the activity, is excus-
able.9 Consequently, her suspension on May 4 violated
the Act
I do not reach the same conclusion with respect to her
second suspension on November 30 On that date, she
was suspended 10 working days, from December 1 to 14,
because "despite previous disciplinary action, you again
directed abusive language in a disrespectful manner
toward a member of supervision." She was further
warned that recurrence of this behavior would be cause
for more severe disciplinary action, up to and including
dismissal. The second suspension is questionable only to
the extent that its length and the accompanying warnings
were predicated to some extent on the previous discipli-
nary action, which made the second offense a repeat of-
fense
On this occasion, the difficulty arose from the fact
that, because of a shortage of personnel in a neighboring
department on St. Marie's floor, Respondent was shifting
personnel around in order to keep production moving.
There had been two layoffs within a short period of
time, the most recent occurring at the end of October.
St. Marie testified (without contradiction) that supervi-
sion admitted having lost more people than originally in-
tended. However, they were getting busy and in order to
get the work done people were being moved from one
occupational group and type of work to another. St.
Marie testified that, on November 19, Foreman Meehan
assigned a VTL operator, Douglas MacDonald, from
across the aisle to work on a milling machine, which she
felt was a contract violation. St. Marie testified that she
walked up to Meehan, who was standing in the aisle near
her machine, and asked him why he had made the as-
signment, to which she says he responded, "I do what I
want around here." She reminded him that he was not
above the contract at which point he just stared at her.
She stared back at him and called him a punk. She testi-
fied that she then launched into a speech about people
being laid off and the resultant tremendous hardship, and
that if the Company needed someone to work on the
milling machine they should recall the people who were
laid off. He started walking away without responding to
her She followed him in order, as she testified, to com-
plete her statement He told her it was not her problem
and walked away.
St. Marie asserts that no one was near them and the
people at their machines probably did not hear what was
being said because of the noise of the machines, which
were in operation at that point
There is no question that she left her work station in
order to talk to Meehan, persisted in continuing her
speech after he indicated his disinterest in her opinion,
and called him a punk. However, the day before the
8 Postal Service, 250 NLRB 4 (1980)
513
Thanksgiving holiday, Foreman Bielonko approached
her and accused her of having called Meehan "a fucking
asshole," which she denied It is noteworthy that the lan-
guage she is accused of using is not quoted in the warn-
ing notice
She served the 10-day suspension On her return to
work she noticed that Douglas MacDonald was back
working on the VTL line, which was his proper fob.
I do not concur in the argument advanced by the Gen-
eral Counsel that the suspension of St. Marie for her con-
duct on this occasion violated the Act. There was a
shortage of personnel and Respondent was shifting per-
sonnel around in order to keep production moving. St.
Marie protested to the supervisor that if personnel were
needed the proper procedure was to recall workers who
had recently been laid off; he responded that it was out
of his hands and walked away, she followed him for
some distance continuing her argument in a heated fash-
ion, and finally insulted him.
The collective-bargaining agreement explicitly pro-
vides for the occasions on which shop stewards may
leave their work stations in order to carry on union ac-
tivity. She was not involved in any grievance proceeding
at this time or performing any function as a shop steward
which authorized her departure from her work station
under the agreement. Her conduct was not in the course
of "policing the contract," for her duties in that respect
did not extend beyond reporting the circumstancees of
an apparent contract violation to the proper union offi-
cials charged with the duty of determining the course of
action to be taken in the event of an apparent contract
violation. (This is not a situation in which an employee is
merely exercising his rights guaranteed in Sec. 7 of the
Act, by attempting to enforce the provisions of a collec-
tive-bargaining agreement. St. Marie was a shop steward
with a clearly defined sphere of authority and the exist-
ence of a contract violation was a question yet to be de-
termined by those to whom she was supposed to report
such circumstances.) Furthermore, a shop steward is not
responsible for negotiating the recall of employees who
have been laid off.
Accordingly, I find that although the first suspension
of St. Marie violated the Act, the second suspension did
not
B. The Buttons
Paragraph 9 of the complaint, as amended, alleges that
on December 1, 1981, Respondent, acting through three
foremen, David Fracchia, Joseph Carrier, and Shirley
Bisson, instructed employees to remove union buttons.
The evidence wholly fails to sustain this allegation
The incidents underlying the allegation occurred in the
aftermath of St. Marie's second suspension. A number of
employees began wearing buttons which bore slogans
such as "Suspend the punk, not Marie" and "Suspend
harassment, not Marie." It is plain that the reference to
"the punk" was a reference to the supervisor, Meehan,
whom she had insulted. There is no evidence as to how
the button campaign got started, whether it was sponta-
neous or whether the Union was in any way involved in
it or supported or approved of it. The buttons' them-
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
selves were made out of paper by the employees them-
selves
The evidence establishes that some of the supervisors
felt either that the buttons were an insult to supervision
generally, or to Meehan, the particular supervisor in-
volved.
General Foreman David P. Fracchia testified that
when he saw an employee wearing a button stating,
"Suspend the punk, not St. Marie" he approached him
and asked him to please remove it The employee asked
him if the foreman, apparently referring to Meehan,
worked for Fracchia and Fracchia replied in the affirma-
tive. The employee complied. Another employee whom
he approached (James Tackett) asked him if removing
the button was "a condition of employment " Fracchia
testified, "I said, all I'm asking if you would remove the
badge " Tackett complied. Fracchia recalled approach-
ing only two employees. Foreman Joseph Carrier testi-
fied that he spoke to employees and told them that "we
would appreciate it if they would remove them." He was
instructed by Fracchia to approach them with that mes-
sage Shirley Bisson testified that she found the "Suspend
the punk, not Lucille" buttons personnally offensive and
felt that they should be removed She felt they clearly
referred to the foreman who suspended St. Marie but
asked the employees to remove the buttons "because I
found it offensive to supervision."
Nothing contained in the testimony of any of the em-
ployees tends to alter the impression created by the testi-
mony of these supervisors that they regarded the buttons
as an insult to supervision generally or to the particular
supervisor involved and were not personally offended by
the buttons, and that their requests to several employees
who were wearing such buttons to remove them were in
the form of polite requests with no element of coercion.
Almost all the employees who were requested to remove
the buttons did so quickly. In some instances , they re-
placed the buttons with other buttons indicating proun-
ion sentiment , which they were not asked to remove.
It was stipulated by counsel that at the times material
to these proceedings no specific rules or regulations were
in effect at Respondent's East Hartford facility with re-
spect to the wearing of buttons and/or other insignia on
company premises
Raymond Henry, a welder who has worked for Re-
spondent since 1957, worked in department 1423 under
Carrier. He wore a number of different buttons over the
course of time. He produced two buttons which bore the
legend, "Suspend harassment, not Lucille " Lucille St.
Marie was his shop steward. Henry testified that every-
body made their own buttons. Henry testified that Carri-
er came to him and told him to take the button off and,
when asked the reason, said that it bothered him and
would not help St. Marie. At the very time this was hap-
pening, Henry was wearing what he referred to as "the
real button" which he always wore, but he was not
asked to take that one off.
Though on direct examination Henry stated that Carri-
er told him that his wearing the button bothered him, on
cross-examination he testified that Carrier said it did not
bother him but would not help St. Marie He conceded
he was not threatened; he was just told to take it off and
he did. James Sheehan, another welder, who has worked
at Pratt and Whitney since 1952, was present during the
conversation between Carrier and Henry. He was wear-
ing a button with the legend, "suspend harassing Lu-
cille." Carrier approached him while he was talking to
Henry and he quotes Carrier as saying, "I'd appreciate it
if you'd take off the button, it's not helping Lucille; there
is something in the works." Sheehan then took off the
button
Feliciano Laboy testified that he was wearing a button
and Shirley Bisson approached him. He quotes her as
saying, "Would you remove them please." When he
asked on what grounds, she said, "I consider that harass-
ment to the supervision." At that point she was called
away for a telephone call. Laboy switched to buttons
which contained slogans such as "Dollars for jobs, not
bombs" and "United States out of El Salvador " When
he saw her again half an hour later she saw those buttons
but did not ask him to remove them He also testified
that he regularly wears union buttons in the plant and is
not asked to remove them.
The tone of the requests to remove the buttons is no-
where better illustrated than in the testimony of James
Tackett, an all-round machinist who worked at Pratt and
Whitney from March 1978 to October 1982 and was a
shop steward at the time in question. He testified that
when Fracchia saw the button, "he said something to the
effect that you know, Jim, that's not-that doesn't even
speak to the issue, it's just going to raise things to a
higher emotional level in the department; it's a bad idea,
something like that " Though Tackett countered that the
action against St. Marie was unfair and was part of su-
pervision harassment of her in her job as shop steward,
Fracchia persisted his request. When Tackett asked him
the reasons, Fracchia "said again that this doesn't really
speak to what happened and it will make things hard
around here and take the button off." Tackett asked
Fracchia if disciplinary action would result if he refused
to take the button off and Fracchia replied that he did
not know Tackett stated that he felt that he was entitled
to know whether disciplinary action would be taken be
cause it would have a direct bearing on whether or not
he kept the button on. He asked Fracchia if compliance
was a condition of employment According to Tackett,
Fracchia responded by saying that if it meant that he
would be walked out the door, no, if it meant that he
might get an employee memorandum, he did not know.
(An employee memorandum is a written disciplinary
warning) Tackett testified that he removed the button
later in the day and when he passed Fracchia, Fracchia
"thanked me for taking the button off."
The long and short of Tackett's testimony is that Frac-
chia politely asked him to remove the button, he was not
disciplined for his initial refusal to do so, and Fracchia
thanked him when he subsequently stopped wearing it.
Asking employees to remove prounion insignia vio-
lates Section 7 of the Act, but that is not what was
proved in this case. The buttons involved were not union
buttons in any guise They neither proclaimed adherence
to union principles in general nor identified the wearers
as members of the Union. While they were an expression
UNITED TECHNOLOGIES CORP
of a protest, no evidence was adduced which established
that the wearing of the buttons was designed to or ex-
pected to result in the revocation of St. Marie's suspen-
sion, that the fact that more than one employee wore
buttons showed anything other than copying, or that the
wearing of the buttons was protected concerted activity
in any form or intent It was purely gratuitous on the
part of the employees who did it. The testimony clearly
established that everybody made their own buttons. No
one was asked to remove union buttons. No one was
asked to remove buttons containing slogans relating to
matters of current public interest
Not even compulsion to remove the buttons is shown
to have been exercised The employees were politely re-
quested to remove the buttons and their reactions clearly
indicated a lack of actual duress. In the one solitary case
of an employee's actual refusal to remove the button for
several hours no disciplinary action was taken.
The circumstances do not reveal any violation of Sec-
tion 8(a)(1) of the Act.
C. Harassment of Ruby Graham
The General Counsel alleges that a series of circum-
stances in the relationship between Ruby Graham and
management personnel add up to harassment of her
when they are weighed together and when viewed
against the background of prior instances involving other
shop stewards in which Respondent has been found
guilty of violating the Act
The General Counsel calls attention to two litigated
cases. In one, Hattie Gahagen and another shop steward
were discharged for union solicitation on company time
An administrative law judge found that they had not in
fact been soliciting on company time and ordered them
reinstated. United Aircraft Corp., 179 NLRB 935, 970-971
(1969). Gahagen was reinstated and was ultimately suc-
ceeded as shop steward by Harriet Harris After Harris
was terminated, an arbitrator found her to have been the
victim of harassment and ordered her reinstated.
I do not view the Gahagen case as similar in any way
to the circumstances proven to have existed in this case.
There was no proof whatsoever that either Gahagen or
the other shop steward had committed the offense
charged by the Company, so that the action of manage-
ment was clearly shown to have been taken without
cause and for the purpose of harassing the two shop
stewards That leaves the Harris case as the only prior
instance of violation of the Act by Respondent in this
fashion One such instance does not suffice to establish
the existence of a pattern of conduct by Respondent
which should be considered in weighing the current
charges.
While administrative notice may be taken of prior
cases involving an employer which indicate a disposition
on its part to engage in a particular type of unlawful
conduct,1° I do not attach much significance to viola-
10 United Technologies Corp, 260 NLRB 1430 (1982), wherein Re-
spondent was charged with violation of Sec 8(a)(3) and (1) of the Act
for discharging union stewards at Pratt & Whitney because of their union
activities The finding of the administrative law judge, that the discharges
of the two union shop stewards was not discriminatory because they had
clearly violated company rules, was upheld by the Board
515
dons in two cases 17 years apart, especially when only
one of the cases is similar to the instant case.
The key factor in Graham's situation was that she rep-
resented an unusually large number of employees and
consequently filed and processed an unusually large
number of grievances. She represented 900 employees in
1979, when she first became a shop steward. By 1981,
the number had increased to 2000 employees in several
different departments. As a result, she filed about 200
grievances in the calendar year 1981 alone She ended up
filing additional grievances on her own behalf in which
she alleged that she was being harassed because of her
activities on behalf of the Union.
1. Misscheduling of grievance meetings
As previously noted, the collective-bargaining agree-
ment provides that in the event that a difference cannot
be resolved at the oral step it must be reduced to writing
on a form obtainable from the foreman within 5 working
days of the foreman's disposition and taken up in a step-I
proceeding as soon as practicable by the shop steward
within whose area the grievance arose with the grieving
employee's foreman and general foreman.
Ruby Graham asserted that notwithstanding these time
requirements the scheduling of processings in which she
was involved as a shop steward encountered substantial
delays, sometimes for periods as long as several months
The fact that her proceedings were handled at a slower
rate than those of other shop stewards is uncontroverted
She complained about it in May. Then she was suddenly
deluged with so many first- and second-step grievance
meetings that she had to handle several first-step meet-
ings and as many as 15 second-step grievances in a single
session . She charges that this placed her under severe
stress, imposed serious time pressure on her with respect
to the processing of the grievances and with respect to
the performance of her regular job in the plant, and cre-
ated difficulties in her relations with the employees
whom she represented.
The General Counsel contends that the multiple sched-
uling was a deliberate attempt by Respondent to make
Graham's life miserable, an interpretation claimed to be
supported by Respondent's purported history of discrimi-
nation against union stewards. As I have indicated, I do
not find the argument based on Respondent's history to
be persuasive. Patently, Graham's difficulties had their
inception in the peculiar circumstance that she represent-
ed an extraordinarily large number of employees and in-
evitably was required to file and process an extraordinar-
ily large number of grievances for one shop steward
The evidence shows that difficulties are routinely en-
countered in the scheduling of grievances by reason of
absences of management or supervisory personnel whose
attendance is required or by reason of the employee's or
Graham's own unavailability, and the normal difficulties
incident to scheduling meetings were obviously aggra-
vated and magnified by the large constituency with
which she was burdened.
There is no showing in the record that any specific
grievance or group of grievances were delayed or ad-
journed or scheduled in such fashion as to permit an in-
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ference that such scheduling was part of an attempt to
harass Ruby Graham . An accusation of this nature
should be supported by examples of otherwise unexplain-
able delays in specific grievance cases. Not a single such
instance was brought to light, and there was no rebuttal
of explanations offered by supervisory personnel for the
general problems which existed in scheduling Respond-
ent's witnesses testified in a credible fashion to a number
of ways in which delays could reasonably be expected to
arise in Ruby Graham 's cases. Mark Rietsma , a personnel
advisor, testified that when he tried to schedule first-step
grievances he had great difficulty getting all the neces-
sary parties together at one time, especially in May and
June, when the grievance calendar was overloaded by a
large number of grievances filed by a small group of em-
ployees whom Graham represented . He found that,
when the employees and the foreman were available,
Graham was out servicing a request for a steward; on
other occasions , the general foreman was not available
because he was taking inventory , there were situations in
which Rietsma was advised by Graham 's foreman that
Graham had told him earlier in the day that she did not
want to handle any union business that day, there were
occasions when personnel who were required to be
present at the grievance step were on vacation or absent
from the plant for other reasons.
Rietsma testified that they usually provided 24 hours'
notification before having a second-step meeting. Asked
specifically about Graham 's accusation that he had
scheduled 15 grievances for her to hear in one afternoon,
he denies ever scheduling 15 grievances in one after-
noon He conceded only that at a time when they had a
backlog, rather than have her traveling back and forth
through the plant to hear one grievance at a time, it was
decided to set aside an afternoon and process as many
grievances as possible consecutively during the course of
the afternoon , and hear the balance at a later meeting.
He conceded that "there might have been a couple" of
instances in which a large number of hearings were
scheduled for one afternoon with Graham . There was
one situation in which a group of employees had filed
identically worded grievances Since the issues were
identical and all the grievances involved the same stew-
ard, foreman , and general foreman , it made sense to
handle them consecutively. While Rietsma could not
recall the largest number of hearings he ever scheduled
for one afternoon , he was quite positive that he never
scheduled as many as 15 or even 14.
Rietsma insisted that grievances handled by Graham
were not handled any differently from those of any other
shop steward and the record as a whole appears to bear
out this contention . While he conceded that it generally
took longer to schedule Graham's first -step meetings
than those of other shop stewards , requiring periods
ranging from within the 5-day period to 2 weeks, that
concession does not warrant speculation , unsupported by
any other evidence, that the delays constituted deliberate
harassment Graham was an extraordinarily busy shop
steward who represented a disproportionately large per-
centage of the work force . There is not a hint of any
suggestion , other than the General Counsel 's citations of
the history of Respondent , which I have found unpersua-
sive, that harassment of union stewards was a general
practice . On the contrary , the General Counsel seeks to
support the contention that Graham was being harassed
by comparison with the shorter processing time of cases
handled by the other shop stewards Even the suggestion
that she was being harassed because of the large number
of grievancs which she filed is not persuasive, for it
speaks only in terms of the gross number of grievances
filed . There has been no attempt to compare the number
which she filed with the number filed by other stewards,
past or present For all we know, percentage-wise,
Graham may have been filing only as many or fewer
grievances per working population than any of the other
stewards . The record is silent on this point.
It has not been established by a preponderance of the
evidence that Ruby Graham was subjected to missche-
duling of her grievance proceedings as part of an attempt
to harass her.
2. Signing for photocopies
On January 1, 1981, a Connecticut statute providing
for employees ' access to their own personnel records
twice a year became effective . It required employers to
permit employees to inspect their personnel files during
regular business hours, to keep the files for at least 1
year after the termination of employment , and to provide
copies of papers contained in the files for a cost-related
fee.
Over a period of time, Respondent adopted several dif-
ferent procedures for compliance with the statutory re-
quirement. Its procedures varied in different sections of
the plant and within the sections , at different times. In
Graham ' s own department at one particular period in
1981, an employee who requested a copy of a paper was
required to initial the original to indicate receipt of the
copy ; the paper was then photocopied and a copy given
to the employee without charge
Ruby Graham availed herself of the right to inspect
her file on March 31 and November 17, 1981 In March,
in conformity with the procedure then in effect, she
signed a request form and was then given the file for ex-
amination ; after she was finished , she signed the bottom
of the same form to acknowledge that she had seen her
file When she returned in November, an altogether dif-
ferent procedure was in effect Her foreman , Stanley
Robbins, required her to sign each individual record
within the file in order to get a photocopy of it Graham
testified she was not familiar with any situation in which
any other employee had ever been required to sign for
records in that burdensome fashion; that the procedure
was frustrating ; and that its burdensome nature, com-
bined with remarks which Robbins made to her while
she was examining the records about how long it was
taking, placed her under great stress She testified,
I became so frustrated because there are so many
pages within the files, and I became so frustrated
because I had been told just prior to this that I was
spending too much time away from my working
station that did not , really, pertain to the job So, I
was so frustrated because this would have taken
UNITED TECHNOLOGIES CORP
quite an additional amount of time So, I didn't
bother to sign them
According to Graham, "I did sign a few. There was so
many that I became frustrated " However, she appears to
have actually signed all but three of the documents. Rob-
bins testified that he was in the process of giving her
copies of the file and there remained only three pieces
for which she had not signed. He asked her to sign for
them and she refused, so he did not give out copies of
those papers. She got copies of everything else Robbins
thought he recalled that she called the steward who
asked her to sign for the remaining three and she refused
saying she did not want them It was also Robbins' recol-
lection that it took her 5 hours to go through the file and
that they had to come back a second time in order for
her to complete her review Robbins testified that he fol-
lowed the procedure then in use in the department,
every foreman was instructed to follow it, and there
were people who inspected files and signed for each
paper just the way Graham had been asked to do.
Graham, however, named three persons who had been
given photo copies without signing for the documents in-
dependently She named them and their department, but
could not, however, testify as to when they made their
request and what procedures governed inspection of doc-
uments in those departments at the time. Thus, there is
uncontroverted evidence that some employees who re-
quested copies of papers in their files were not required
to comply with the procedure to which Graham was
subjected; at the same time, that procedure appears to
have governed the issuance of copies in Graham's de-
partment. Respondent concedes that the policy of requir-
ing that each paper be initialed was abandoned after a
few months
The General Counsel's contention that the imposition
of such an onerous requirement on Graham was another
instance of Respondent's program of harassment of
Graham because of her activities as a union steward is
undermined by the undisputed fact that the records
which she requested were produced for her inspection
and she was permitted to sit and read the items over a
period of many hours. The papers she wanted copied
took a long time to initial because, according to Robbins'
undisputed testimony, she insisted on reading each one
thoroughly before putting her name on it That she im-
posed that burden on herself does not make it an act of
harassment by Respondent. She pinpointed the imposi-
tion of the requirement that she initial the pages she
wanted copied as the act of harassment. Her testimony
makes it clear that it was not the initialing, but the self-
imposed necessity of reading every such page, that made
the process burdensome.
Even if the initialing were to be considered burden-
some, there is no evidence to contradict Respondent's
witnesses' testimony that the procedure was applicable to
everybody in the department at that time and that other
persons requesting copies complied with the requirement.
Of course, Graham was required to do much more ini-
tialing because her file was unusually thick, a circum-
stance which by itself is claimed to have constituted part
of the harassment. Nevertheless, the initialing require-
517
ment per se has not been shown to have been imposed
for the purpose of harassing Graham.
In any event, the proof falls far short of establishing
the allegation of paragraph 14 of the complaint, as
amended, which set forth that she was required to sign
for each separate document "when, in her capacity as
Union steward, she requested employee personnel files."
The evidence was limited to a showing that the require-
ment was imposed and frustrated her only in connection
with an examination of her own personnel file for purely
personal reasons Her duties as shop steward were not in
any way involved or impeded thereby.
Accordingly, I do not find that the requirement that
Graham initial papers in her file which she wanted pho-
tocopied constituted harassment by Respondent as al-
leged in the complaint, as amended
3 Notes in Graham's personnel file
The size of Graham's personnel file was remarkable
because it contained an extraordinary number of notes
addressed to Superintendent Purnell by Stanley Robbins,
who was Graham's foreman in Department 36 (cutter-
grinder). Robbins referred to these during the course of
his testimony as "memory joggers" and explained that
memoranda of that type were placed in the employees'
files in order to enable supervision to review their per-
formance at appraisal time. According to Robbins, they
were part of an appraisal system designed to achieve a
fairer evaluation of employees' performance than could
be obained by depending exclusively on the foremen's
knowledge of their work. Under this system, the entire
group of employees was audited by supervision on a
periodic basis, (approximately weekly)
The technical supervisor or foreman would issue the
work and observe how it was handled qualitatively and
quantitatively for that particular day. He would then
write up a brief general evaluation of the employee's per-
formance for that day. The system dated from the collec-
tive-bargaining agreement of 1978. John Joseph Waters,
a master mechanic, testified that the new appraisal
system instituted at that time was on an annual rather
than an semiannual basis, utilized somewhat different
rating factors, and involved more verbalized appraisal
dealing with different factors of the employee's perform-
ance The older system which it displaced had been criti-
cized by the employees on the ground that appraisals
under it covered too long a period of time and were not
backed up by specific records; the appraisals which it
produced could not be justified objectively The new
system sampled an employee's work on a regular basis
and preserved "snap shots" of his performance in the
form of the memoranda made on the day he was audited
The basis for the General Counsel's complaint is not
the system itself, but Graham's observation that her file
contained substantially more memoranda than she had
seen in other employees' files and presented a distorted
picture of her work activity. She never saw more than
10 or 15 memoranda in any other files, far short of the
number in her own file. As a shop steward, she had
access to the files of other employees and was in a post-
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion to make a comparison She took the matter up with
Robbins, and quotes his explanation as follows:
Well, he was seated with me at the time that I
was reviewing the records. And, upon seeing all
these notes, the contents of the notes, I began to
question him. I asked him why they were placed
there, and what did they, you know, express. And,
he said to me that it was a day account of my rou-
tine, and that so much of my time was being spent
out of the department area.
Graham pointed out that since her union time was not
being itemized, the notes did not really present a true
picture of her activity on the particular day the audit
memorandum was written.
There is no question that the audit memoranda con-
tained references to the fact that Graham was away from
her work station on union business. Graham testified,
however, that when she initially observed the reports in
her file she also objected to Robbins that the memoranda
did not truly state the kind of performance she had ren-
dered on the particular day because they did not show
specifically the activities being performed and the way
they were being performed She cited as an illustration
the fact that part numbers needed for detailed knowledge
of the work done were omitted. He did not give her an
answer which addressed these objections. According to
Graham, "Well, he explained to me, as I said, so much
time was spent out of the department. . . He did say to
me that I spend so much time away from my department
and this does jeopardize the floor production to keep
moving, but, I could join them " She did not know what
he meant by that remark, but because she was upset and
was asking him many other questions, she never got an
explanation of the remark which she quoted. This discus-
sion took place in March, on the first occasion on which
she reviewed her file. She testified that at the time she
was shocked at the enormous quantity of memoranda in
the file.
Respondent contends (in its posthearing brief) that
there is no evidence that Graham was treated differently
from "similarly situated employees." Such an argument is
specious, for there were no similarly situated employees.
Graham was an extremely busy union steward with an
abnormally large caseload. Respondent also seeks to
evade reality by its observation that the only connection
between the "mind joggers" and union activities is an
"occasional notation" on the memoranda that a certain
amount of time was spent on union business . The need
for such an entry is unclear in view of the fact that
Graham signed out when she went on union business and
the Repondent had a full, independent record of time so
spent by her. The additional entries on the memoranda
serve to reinforce Graham's testimony that she was pres-
sured by Robbins about the amount of time she took to
review her own personnel file.
Respondent argues ( in its posthearing brief) that the
use of "mind joggers" was not alleged in the amended
complaint as an element of the alleged harassment of
Ruby Graham, and that since the General Counsel did
not move to amend the amended complaint to include
this allegation and the matter was not "fully litigated" by
the parties at the hearing, the "mind joggers" should be
excluded from consideration on the question of harass-
ment. At the same time, Respondent inconsistently
argues that the issue of whether the memoranda consti-
tuted harassment should not be resolved in this proceed-
ing merely because a great deal of evidence was intro-
duced at the hearing on the question. Respondent thus
admits that it was litigated and I find that it was fully
litigated. I also find that the fact that the "mind joggers"
were made by supervisory personnel is a matter properly
to be considered in an assessment of Respondent's con-
duct with respect to Graham under the allegation of
paragraph 16 of the amended complaint alleging a course
of conduct constituting harassment since on or about
June 1, including but not limited to the acts and conduct
expressly described in paragraphs 11 through 15 of the
amended complaint Respondent cannot now contend
that the facts adduced and litigated should be ignored.
The existence of these memoranda establishes that
Graham received special attention from Respondent's su-
pervisory personnel, but they furnished no adequate ex-
planation for the extraordinarily large number of memo-
randa or for her foreman's remark about her spending
too much time on union business. I note that Robbins
displayed great personal irritation with Graham because
he had been compelled to sit with her for 5 hours while
she pored over the papers in her file. These circum-
stances enhance the significance of Robbins' testimony
that there was no procedure to ensure that the work of
all of the employees would be seen in the course of the
review and that the employees who were to be audited
were selected at random.
In light of the evidence in the record, considered with
the absence of any satisfactory explanation for the ex-
traordinarily extensive documentation of Graham's per-
formance, I infer that a close watch was being kept on
her for reasons not connected with the needs of the em-
ployee evaluation system. At the hearing, the counsel for
the General Counsel intimated that he considered the ex-
tensive monitoring of her activities, as--reflected in the
memoranda, to be a form of surveillance, but he did not
move to amend the complaint to allege surveillance and
no issue pertaining to surveillance was litigated The ex-
tensiveness of the documentation of Graham's perform-
ance was established in the context of the charge of har-
assment . It is therefore extremely important that Graham
admitted to being surprised at the unusually large
number of memoranda she discovered upon examination
of her file. It is obvious that until then she was unaware
that so many "mind joggers" were being written and
filed regarding her performance. Since she was unaware
of their existence, she cannot contend that Respondent
sought by that means to intimidate or harass her, or that
its actions were having that effect The making or filing
of these memoranda, without their being in any way
called to her attention, cannot be considered harassment
of her by Respondent. If the extensiveness of the docu-
mentation has significance at all, it would have to be to
the extent that it sheds light on the motivation underly-
ing the other activities which are alleged to constitute
UNITED TECHNOLOGIES CORP
harassment I have considered this point in connection
with my analysis of whether all of the acts complained
of, taken together, can be deemed to add up to a course
of harassment of Graham by Respondent
4. Adverse evaluations
The complaint alleges that adverse evaluations of Gra-
ham's performance were issued on March 20, 1980, and
March 24, 1981, as part of Respondent's campaign of
harassment of her. The pertinent "Hourly Employee Per-
formance Rating" forms filled out with respect to her are
in evidence On January 25, 1978, she was rated as
having rendered performance "unquestionably better
than the standard of competency by a marked degree
and for the full rating period," with respect to accuracy,
output, and application of job knowledge. She was cred-
ited with superior performance exceeding the standard of
competency "by a high degree of excellence" with re-
spect to her use of working time and cooperation. On
July 17, 1978, Robbins appraised her performance in sub-
stantially similar manner On March 16, 1979, Robbins
rated her performance on a new form as "fully satisfac-
tory" with respect to productivity, dependability, and
adaptability The form permitted entry of higher ratings
of performance under the following headings: "Exceeds
Expectations" and "Sustained Excellence" and less satis-
factory ratings under the headings, "Acceptable" and
"Not Acceptable." Under "suggested areas for improve-
ment" appears the notation, "Should develop consistency
in quantity and quality of work." Under "Comments"
appears the remark, "Has accepted some of the more
complicated work and progresing reasonably well." On
May 11, 1979, he rated her "fully satisfactory" with re-
spect to "Productivity" and "Dependability" and "ex-
ceeds expectations" with respect to "Adaptability."
Under "Suggested Areas for Improvement" he again
noted "Should develop consistency in quantity of work."
Under "Comments" he repeated his earlier comment of
March 16, 1979.
On February 20, 1980, Robbins rated her as "Fully
Satisfactory" in "Productivity" and "Dependability" and
"Exceeds Expectations" with respect to "Adaptability."
Under "Suggested Areas for Improvement" he suggested
he "Should make an effort to use her full abilities in a
consistent manner." Under "Comments" appeared the
remark, "Has been very helpful in helping move rush
jobs. On some job assignments her Job Performance has
exceeded my expectations."
On July 17, 1980, a report was filed by Robbins to the
effect that in "Productivity" and "Dependability" she
"Exceeded Expectations" and her "Adaptability" was
rated as "Sustained Excellence." It was again noted that
she should make an effort to use her abilities in a consist-
ent manner; that she had been helpful in moving rush
jobs; and that on some job assignments her performance
exceeded expectations.
On March 6, 1981, she was rated as "Fully Satisfac-
tory" in "Productivity" and "Dependability" and "Ex-
ceeds Expectations" in "Adaptability." A "Suggested
Area for Improvement" was that "Ruby should be con-
sistent in using her full capabilities and in showing her
willingness to demonstrate these capabilities when
519
asked " Under "Comments" it was noted, "Ruby takes
pride in her workmanship, and she has shown a willing-
ness to help newer employees." Graham was given this
appraisal March 24, 1981. She objects to this appraisal
and to the one dated February 20, 1980, which she re-
ceived on March 26, 1980, because of the "Fully Satis-
factory" ratings in "Productivity" and "Dependability."
According to Graham, a "Fully Satisfactory" employee
who is rated as such "is not a very good employee" and
is merely an employee who is deemed to have reached a
point of proficiency at which he can function in the job
without the continued help of the supervisor and the
foreman. Graham's characterization of the meaning of
this rating was not controverted by Respondent. Thus,
rating an employee with Graham's experience as "fully
satisfactory" is not a compliment, but a put-down which
could prevent her from qualifying for promotions and
cash performance awards Graham is an employee of 17
years' standing who has not been late for work more
than seven times in that period though she commutes to
work from Springfield, Massachusetts The other com-
ments on the appraisal forms which I have quoted clear-
ly indicate that she is a highly qualified employee and
was so regarded. These two appraisals, however, did not
clearly state the quality of her job performance and her
working routine for the whole year.
Graham testified that when she saw that the 1981 ap-
praisal was the same as the 1980 appraisal she met with
Robbins and went through "a list of itemized events that
had transpired . . . I explained to him all that I had
done. . . . He would never allow me to reach the stage
where I would be acceptable for receiving an
award . . . Instead of my knowledge depreciating, it
should have increased. Each year, I would find that I
would go backwards instead of forward " In these terms,
Graham explained to Robbins what she had done and
why she believed that his appraisal would preclude her
from ever receiving a performance award, notwithstand-
ing that she would have learned more with increased ex-
perience over the course of time. The net effect of the
appraisals was to indicate deterioration in her perform-
ance instead of either stability or improvement. The va-
lidity of her complaint is apparent from the fact that
when Robbins refused to modify the appraisal and
Graham called in a shop steward and filed a grievance,
the appraisal was upgraded
However, establishing that an appraisal should be up-
graded is a far cry from a showing that an unfair labor
appraisal was recorded initially because of union activity
of the employee being evaluated. A critique of the inten-
tions of a supervisor in writing an appraisal of an em-
ployee ought to be based on some evidence specifically
indicating his intentions, especially if the appraisal itself
does not make obvious any intention to ignore or distort
the actual facts. An appraisal is an inherently subjective
undertaking. Its very essence is the expression of the
evaluator's opinion.
The only evidence which was offered to indicate that
Robbins' appraisal of Graham might have been colored
by the fact that she was a union steward spending a
great deal of time on union business is the fact that he
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
expressed his opinion that her time so spent was exces-
sive. That, by itself, is insufficient The holding of such
an opinion is consonant with an intention to evaluate her
work performance in a fair manner
5 Erroneous attribution to Graham of unacceptable
work
Under Respondent's control procedures, an employee
who has worked on a part is required to note his or her
clock number on a green card attached to it Graham
testified that as she was leaving her department one day,
she noticed some dull, rough tools on the outgoing
truck. The obviously unsatisfactory nature of the work
was such that it piqued her curiosity as to who was send-
ing out that kind of work. She looked at the green card
and was shocked to discover her own clock number on
it. She then "became hysterical " Robbins was unable to
give her an explanation and promised to investigate He
subsequently informed her that Laurent T Major, the su-
pervisor, had told him that he had done it, having "made
a slight mistake." Major had "overlooked that the tools
were dull and not sharp "
Graham testified that in her hysteria she insisted that
there had to be a better explanation than that Major
simply overlooked dull and unsharpened tools Major
was a supervisor with 25 years of experience. She de-
manded to see a shop steward, but, according to
Graham, by the time he arrived the paperwork "was de-
stroyed, and there was no evidence " Robbins had torn
up the paperwork
The grievance was resolved by Major's acknowledge-
ment that a "slight error" had been made and would not
be repeated
Major testified and explained this incident, but not sat-
isfactorily. He started by conceding that similar incidents
had occurred on several prior occasions because occa-
sionally, when a clock number is missing from a piece of
work, he fills in the card and initials it. This does not
even begin to explain why he put Graham's clock
number on the card instead of his own initials. He had
absolutely no basis for attributing the work to her inas-
much as he had not assigned it to her and it was patently
beneath the standard of her normal work performance.
Major claimed to have no actual specific recollection of
this particular incident, leaving Graham's testimony un-
disputed and unexplained. I find it impossible to divorce
this incident from the fact that it occurred only a short
period of time after Graham had been given an employee
memorandum for using abusive language to Major
Circumstances of this nature, wholly unexplained, raise
an inference that Graham's clock number was placed on
grossly deficient work by Major with some malicious
intent
6. Written warning
On July 6, 1981, an employee memorandum signed by
Stanley Robbins was issued to Graham because of lan-
guage she had used to Major. The employee memoran-
dum states,
You are being warned for your abusive language
toward your Supervision. This conduct will not be
tolerated and it must not happen again
Any recurrence will be just cause for more
severe disciplinary action.
The employee memorandum arose out of an incident
which had its inception in an attempt by Robbins to find
out why Graham had clocked out certain time for a par-
ticular type of work, that is, he wanted an explanation of
why she had used the clock. He instructed Major, who
was then her supervisor, to get the facts from her. Each
work order is accompanied by a green card which lists
various operations by number. Each of the 67 numbers
represents a particular operation; the worker who per-
forms it signs his clock number next to the number on
the card The records showed that Graham had clocked
a certain amount of time under a specific numbered oper-
ation The following is Graham's own testimony as to
what happened when Major, in her words, "confronted"
her about it.
So, at that time when my supervisor asked for an
explanation, I was quite upset with him because I,
too, was in need of an explanation from him I
thought that that was the right time for each of us
to clear ourselves with each other. . . .
I said to him, if you would like to have an expla-
nation for what I did yesterday, I, too, would like
to have an explanation from you for overlooking
me for 10 working days. He said that that wasn't
important. What he wanted was his question an-
swered. So, I told him that I felt mine was equally
as important. And, since it had existed for a longer
period of time, I felt that he should answer mine
first, and then I would gladly answer his.
They then argued "backwards and forward as to who
was the most important and to who should be answered
first We had a lot of words" Graham concedes that
Major insisted that she answer him because he wanted to
know just what she had been doing for the period of
time indicated and that she refused to do so. She testified
that she had a good reason for spending the amount of
time on the work which she did. It was work of a de-
manding nature which required that she perform several
distinct operations. What upset her was that for the pre-
ceding 10 working days he had been bypassing her with-
out getting her daily work count as he was doing for all
the other employees in her group. She had been waiting
for an opportune moment to ask him why he was omit-
ting her count. She felt that her right to an explanation
from him was at least as strong as his right to an expla-
nation from her for her production of the preceding
period. It was at this point that she insulted him.
The recollection of Major and Robbins as to what
Graham said to Major is somewhat different from her
own recollection. According to Major, when he first
went to her and asked her why she used a certain oper-
ation she refused to give him any answer at all. He re-
ported to Robbins that he could not get an answer and
Robbins told him to go back and try again, which he
UNITED TECHNOLOGIES CORP
did While they were still sitting and talking, she had
jumped between them and called him "a prejudiced bas-
tard " Robbins testified that Graham first called Major
"a prejudiced bastard" and shortly thereafter called him
"a prejudiced old man." After Major returned to his
desk, she reappeared and started to complain to Robbins
about Major's having questioned her and Robbins told
her that he had sent Major to her to get certain informa-
tion
Robbins testified that Major had complained to him on
previous occasions that he had taken verbal abuse from
Graham, but Robbins had not witnessed the prior occur-
rences.
I find Graham's explanation for her conduct extremely
weak in view of her concession that Major asked her
what she had been doing. That was her opportunity to
explain it to him His failure to take a daily count was
irrelevant if she were given that opportunity . Instead, ac-
cording to her own testimony, "I called him a stupid old
prejudiced man." She made the statement within earshot
of the entire department , including Robbins.
Under the circumstances, the issuance of the employee
memorandum would appear to have been a normal exer-
cise of supervisory discipline and not an act of harass-
ment.
7. Conclusions as to harassment
The evidence is sufficient to raise suspicions regarding
the alleged conduct of Respondent 's personnel in only
two of the six situations claimed to have constituted har-
assment These are the attribution by Major of faulty
work to Graham and the filing of a large number of
audit memoranda in Graham 's personnel file (which was
not alleged separately as harassment but is considered,
and rejected , in this connection).
Questionable as Major's conduct is , there is no evi-
dence linking it to any campaign on Respondent 's part to
harass Graham because of her union activity. At best, it
shows he had personal reason to be hostile to her. I also
fail to see that the audit memoranda indicate an illegal
motivation underlying the other circumstances alleged to
constitute harassment, which I have found not to be
such The burden is upon the General Counsel to estab-
lish the nexus , and that burden is not met by an invita-
tion to speculate on the unexplainable circumstances.
The mere discrepancy in number between the memoran-
da in Graham's file and those in the files of other em-
ployees raises suspicions , but those may not be graduated
to the level of inference except from proven facts None
were adduced . Suspicion is not an acceptable substitute
for proof that Graham was harassed or that she was har-
assed in furtherance of illegal purposes of Respondent
Employer I'
International Computaprint Corp, 261 NLRB 1106 (1982)
521
D Refusal to Furnish Information in Connection with
Grievances
1. Ruby Graham's grievance
A grievance concerning the employee memorandum
issued to Graham on July 6, 1981 , was filed on her
behalf by the Union itself, as a thrid-step grievance This
was done on December 10, 1981. The grievance alleged,
"Due to circumstances of D-36 supervision and me, the
Employee Memorandum received on July 6, 1981 is
unjust and false." The remedy requested was "To have
the Employee Memorandum removed from all company
records "
Long before that grievance was filed, however,
Graham had, on July 7, 1981, filed four grievances on
her own behalf. None of them contained any reference
to the employee memorandum The allegations of these
grievances were as follows
(a) "Stanley Robbins is interfering with me and an-
other member of my supervision. He prevented us from
arguing and disagreeing with one another on matters
where both Larry and me were wrong." The remedy re-
quested was "That Robbins stay out of matters that does
not concern him in future."
(b) "Foreman Robbins refused to tell the truth or bar-
gain in good faith." The remedy requested was "There is
something he has against me since this type of treatment
has never before interfered with my job performances "
(c) "I grieve the notes placed by my supervisor, Larry
Major will be removed as he said it was unfair . It stated
a `poor' day June 30, 1981. There was four hours used
for completing two different operations on sixteen cut-
ters (8) sets." The remedy requested was that "Foreman
Robbins will without prejudice let the supervisor remove
as stated ` not fair' Also, verbal warning superintendent
promised he too would . 1980. Two minutes before lunch
away from machine."
(d) "I am subjected to discrimination, constant harass-
ment, unfair working conditions with the foreman Rob-
bins personal feelings interfering on day-to-day basis.
(V.S.) The `note' he placed in my file on 10/4/80, then
consideration shown to other employees on the same job
today " The remedy requested was that "Foreman Rob-
bins be investigated and have the notes rescinded that do
not constitute my abilities and job knowledge . And all
discrimination factors are stopped immediately."
The oral step and first step of each of these four griev-
ances were handled in a combined session on July 16,
1981, with Richard Heacox, a shop steward, acting on
Graham's behalf. Porter Purnell and Stanley Robbins
represented management In the course of the session,
Heacox requested a copy of a letter that Graham told
him Major had written to Porter Purnell . Heacox testi-
fied that Graham had stated to him that she and Major
had had a 2 -hour talk about their working relationship
which had resulted in the development of a good work-
ing relationship between them, that Major had told her
that in his anger at the way she had spoken to him he
had sent a letter to Purnell which he had regretted send-
ing and had tried to retract Heacox was aware that the
Union was preparing to file a grievance related to the
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee memorandum and he requested a copy of
Major's letter because he felt it would have a bearing on
that grievance. Purnell took the position that the letter
had been addressed to him personally and therefore was
not part of Graham's personnel records and refused to
furnish a copy of it or divulge its contents.
Insofar as the grievance arising from the employee
memorandum is concerned, it is contended that Purnell
properly refused to produce the letter It may be noted,
preliminarily, that the document in question is, in form,
not a letter, but a memorandum dated July 1, 1981, from
Major, in his official capacity, addressed to Purnell, in
his official capacity.
The grievance had not been filed as of that date and in
fact was not filed until 5 months later Seemingly, there
was no way, at that point in time, that the fact that an
employee memorandum may have been issued in the face
of Major's retraction could have come into play This ar-
gument is untenable. The Union was patently entitled to
the document in advance of filing the grievance respect-
ing the employee memorandum in order to process and
weigh the merits of the grievance for the purpose of
making its own decision as to whether to press it or drop
it and, if it were going to proceed on it, for the purpose
of preparing its case. i 2
Of course, it was probable, if Graham's own testimony
respecting her conversation with Major is to be credited,
that no contradiction would be found to exist between
the contents of Major's memorandum and the position
taken by Respondent's supervisory personnel, since
Graham testified that Major had told her he had made
uncomplimentary statements about her which he then re-
gretted having made Nevertheless, the Union was enti-
tled to see the memorandum, both for the purposes noted
herein and because it is entitled to make its own evalua-
tion of the contents.
There existed other reasons, however, the document
should have been produced. According to the memoran-
dum, Major was not only not retracting his complaints
about Graham, but was incensed at 'her conduct and
wanted something done about it The memorandum was
therefore plainly relevant to the grievances being proc-
essed at that time, both when considered together with
each other and when considered in light of express
charges of discrimination and harassment Inasmuch as
Major and Graham contradicted each other on the spe-
cific issue of what she had said to him and Graham was
alleging that a great deal of what was happening in the
course of her workday resulted from a campaign of stud-
ied harassment against her, it became very important to
know what Major told his superiors about her and what
his own general attitude was toward her The memoran-
dum went to Purnell before the employee memorandum
was issued and the employee memorandum was issued
on instructions from supervisory personnel above Major
in the hierarchy. Questions could validly be asked as to
whether or not they had made more of the situation than
Major had given them warrant for or whether his re-
ports made unfounded allegations and were designed to
foment trouble for her The contents of the memoran-
' 2 NLRB v Acme Industrial Co, 385 U S 432 (1967)
dum and the reaction of management to it had a bearing
on the existence or nonexistence of a course of harass-
ment against Graham
Thus, the Respondent's contention that the memoran-
dum is irrelevant to the grievances as filed at the time it
was requested ignores the Union's right to it in connec-
tion with the preparation of the grievance yet to be filed;
ignores the express allegations of the filed grievances,
and smacks of a transparent effort to capitalize on what
may have been Heacox's lack of sophistication in basing
his request solely on the grievance then in preparation,
the facts of which were not even mentioned in the four
grievances already filed Respondent's contention also
overlooks the fact that the Union had the right to probe
whether the filing of the grievances on July 7 had any
relationship to the issuance of the employee memoran-
dum the very next day
The memorandum was therefore relevant to all of the
grievances, both the group filed on July 7 and the fifth
grievance then under consideration by the Union.
However inartistically Graham and Heacox may have
phrased the request for Major's memorandum to Purnell,
Purnell and Robbins knew what Graham was complain-
ing about and should therefore have produced it. It was
part and parcel of the entire incident under investigation
and was relevant as to the probity of Major, his attitude
and the attitude of other management personnel toward
Graham, the issue of whether she was being harassed,
and the issue of what she actually said to Major. The
failure to produce it violated Section 8(a)(5) of the Act.
2 The Cotnoir grievance
Pursuant to an "Employee Suggestion Plan," Joseph
Cotnoir submitted a suggestion which resulted in saving
time on a particular operation, for which he was award-
ed the sum of $25 in March 1981 In April, Cotnoir filed
a grievance in connection with the award which resulted
in a decision that the industrial engineering department
would "reinvestigate the standard " Respondent Employ-
er claims that management understood this to mean it
would determine the percentile saving of time which re-
sulted from his suggestion The shop steward thought it
meant that the job would be retimed In May, Cotnoir
filed a grievance asserting that Respondent Employer
had failed to retime the job as promised Reports of time-
studies were requested which would have shown the
time of the operation for the periods before and after
Cotnoir's suggestion had been adopted and implemented.
The information was not supplied, but Respondent
agreed to retime the job.
In September, Cotnoir filed another grievance, which
was prompted by his discovery that another employee
had been awarded $7500 for a suggestion on the same
job. Prior to the second-step meeting on this grievance,
which was scheduled for November, Cotnoir asked for
the records showing the current and past times for the
operation in question. At that point, for the first time,
Respondent's representatives questioned whether Cotnoir
was in the proper forum, suggesting that proper recourse
was to the suggestions committee established under the
employee suggestion plan. On the basis that a grievance
UNITED TECHNOLOGIES CORP
was not properly brought on a question relating to an
award for a suggestion, they refused to make the records
available
I find no provisions in the rules governing the proce-
dures of the suggestion committee which limit an em-
ployee's appeal on a question relating to an award solely
to the committee itself. On the contrary, the language
used is permissive and consequently strongly implies that
the recourse therein provided is not exclusive Therefore,
if the subject matter is such as would be embraced
within the scope of the normal grievance procedure, that
would be another avenue of recourse available to a dis-
satisfied employee, a waiver of which will not be pre-
sumed in the absence of clear evidence of intent to waive
it. 13
The scope of the suggestion procedure is broad
enough to embrace all aspects of the work of Respond-
ent's employees: It covers the work product itself, the
condition of the physical plant in which they work, and
the working conditions in general under which the prod-
uct is produced. The emoluments are directly related to
the amount of production time saved by the suggestions
submitted and adopted The direction of the suggestion
committee in fixing the amount of the awards is not ab-
solute; the published suggestion procedure requires that
the amount awarded bear a relation to the amount of
time saved insofar as that is capable of being measured,
as it is in Cotnoir's situation. Plainly, the award is not a
gift or even an expression of appreciation as much as it is
recompense for a suggestion of value which enhances the
profitability of the Company by reducing its costs of pro-
duction and operation. It is an incentive for ambitious
and thoughtful employees to contribute to the Compa-
ny's progress It is therefore an important working con-
dition and the Company's failure to keep faith with an
employee with respect to it is a grievable breach.
The production records which Cotnoir requested are
relevant in a grievance proceeding involving such a sub-
ject matter and they were improperly withheld.
3. The Belesano grievance
Deborah Belesano wanted a promotion to a job which
she believed had been declined by another employee
named Robert Jones. Her seniority position would not
have entitled her to the job had other employees been in-
terested, but she took the position that, if an opening ex-
isted, she had the right to know about it and apply for
the job
Management advised her that there was no job open-
ing. In fact, the supposed vacancy was not filled. Bele-
sano filed a grievance alleging that Respondent's promo-
tional and transfer policy favored a few chosen employ-
ees She filed an additional grievance alleging that infor-
mation relevant to the first grievance had been misrepre-
sented by management.
Belesano sought examination of the "Employee's Re-
marks" section of Jones' personnel records on the theory
that if he had, in fact, been offered the promotion, which
Respondent denied, the record would document the fact
that the offer had been made. This would provide an evi-
523
dentiary basis for her contention that the withdrawal of
the offer was discriminatory. It is the type of information
which the Union plainly needed in order to determine if
the grievance was meritorious and should be pressed or
whether it should be withdrawn.
The Respondent Employer's failure to supply the
record therefore violated the Act
4 Michael Lovely's grievance
It was Michael Lovely's job to inspect aircraft engine
parts by means of X-ray techniques. He approved certain
parts without actually inspecting them, for which he was
fired. The Union filed a grievance, the burden of which
was that Respondent, not Lovely, was at fault because
Respondent had been neglectful in its supervision of
Lovely; had he been properly chastised when he first de-
veloped the habit of passing parts without even looking
at them, he would never have become so neglectful that
they would have had to fire him.
The merits of the Union's contention in the grievance
proceeding are not in issue in this proceeding The issue
in this proceeding is whether Respondent Employer vio-
lated the Act by refusing to furnish, in compliance with
the Union's request, certain reports and documents The
parties disagree as to the very existence of this material,
the Union presuming its existence and Respondent deny-
ing it I would imagine that in the absence of proof of
their existence, I would have to take Respondent's word
that such documents do not exist
However, the real question is whether Respondent
Employer has not split hairs too finely by refusing to
make available information to which the Union is enti-
tled because the Union, not being privy to the contents
of Respondent's files, has erroneously specified or de-
scribed the documents containing the information which
it seeks. The documents which the Union requested were
designated by it as the report of a committee of experts
which was believed to have reviewed the X-ray films
which Lovely had been obligated to inspect (and had
not), all department procedures on audit, past and
present; reports of Respondent's internal security and in-
vestigation department (ISID Reports); and an Air Force
investigation report. The Company has asserted that no
such documents as those described in the Union's request
actually exist, and that what the Company got from
ISID consisted of witnesses' statements If that is what
they were, they did not have to be produced.14
Though Respondent did not produce documents set
forth in the Union's request, it made available to the
Union at the grievance step the films of the parts that
Lovely improperly passed through There does not seem
to be any real question that Lovely passed engine casings
which were defective without even opening the packets
of X-ray films to see what they showed. The Union does
not assert his innocence, instead, it has devoted itself to
arguing that the film produced at the grievance did not
have conclusive identification showing that it was the
film Lovely passed, and that it had reason to believe that
13 General Motors Corp, 232 NLRB 335 (1977) 14 Anheuser-Busch, Inc, 237 NLRB 982 (1978)
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the documents requested actually did exist The reason
for such belief was never disclosed.
The Union is demanding production of materials rele-
vant to the issue of Lovely's guilt, which was not in
issue because the Union was making Respondent's im-
proper supervision of Lovely the issue. Its argument was
that adequate supervision at an earlier stage would have
precluded the subsequent misfeasances and the need for
disciplinary action of the gravity finally imposed None
of the material demanded by the Union would have been
relevant to that argument.
Since there was no issue as to Lovely's misconduct,
none of the material was relevant and, regardless of the
form in which the information respecting his guilt exist-
ed, its production was not required. Respondent did not
violate the Act by its failure to comply with the Union's
demand.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices committed by Respondent
have a close , intimate , and substantial relationship to
trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3 Respondent violated Section 8(a)(1) and (3) of the
Act by suspending its employee Lucille St Marie on
May 4, 1981, for the 5-day period from May 5 to May
11, 1981.
4. Respondent violated Section 8(a)(1) and (5) of the
Act by refusing to furnish to the Union a copy of a
memorandum from Lauren T. Major to Porter Purnell
dated July 1, 1981, requested in connection with griev-
ances filed or to be filed by or on behalf of Ruby
Graham; records showing current and past times for an
operation in connection with which Joseph Cotnoir had
submitted a suggestion , requested in connection with a
grievance filed by Joseph Cotnoir in September 1981;
and access to the "Employee's Remarks" section of the
personnel records of an employee named Robert Jones,
in connection with grievances filed by Deborah Blesano
alleging discrimination in Respondent's promotional and
transfer policy and misrepresentation of information rele-
vant to that grievance
5. Respondent did not commit unfair labor practices
other than those found herein
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I recommend that Respondent be directed to
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act
I accordingly recommend that Respondent be required
to make Lucille St. Marie whole for wages and any
other benefits which she may have lost by reason of the
5-day suspension imposed on her on May 4, 1981, to be
computed in the manner prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest thereon to be
computed in the manner prescribed in Florida Steel
Corp, 231 NLRB 651 (1977), and Isis Plumbing Co., 138
NLRB 716 (1962). In determining the appropriateness of
this remedy, I have taken into account the influence
which this wrongful suspension undoubtedly had on the
penalty imposed by Respondent on November 30, 1981,
which was assessed as punishment for a second offense
of the same nature. There is no evidence in the record as
to the extent of the influence of the first disciplinary
action in fixing the penalty in the second. We do know,
however, that Respondent sent her to a 6-month training
program in 1980, as a result of which she was promoted
to a higher paying position. Under all the circumstances,
therefore, it would appear that restoration of the pay and
any benefits which St. Marie lost during the first suspen-
sion will constitute an adequate remedy
With respect to the information withheld from the
Union, I will recommend that Respondent be directed
forthwith to turn over to the Union the information re-
quested in connection with the grievances filed by Ruby
Graham, Joseph Cotnoir, and Deborah Belesano.
[Recommended Order omitted from publication ]