United Technologies Corp.

National Labor Relations Board - Board Decisions

Nov 20, 1985

277 N.L.R.B. 584 (N.L.R.B. 1985)

584 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
20 November 1985
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 24 July 1985 Administrative Law Judge
Harold B. Lawrence issued the attached supple-
mental decision. The Respondent filed exceptions
and a supporting brief, and the General Counsel
filed an answering brief.'
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the supplemental deci-
sion and the record in light of the exceptions and
briefs and has decided to affirm the judge's rulings,
findings,2 and conclusions and to adopt the recom-
mended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, United
Technologies Corporation, Hartford, Connecticut,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
SUPPLEMENTAL DECISION
STATEMENT OF THE QUESTION REMANDED
HAROLD B. LAWRENCE, Administrative Law Judge.
On 30 March 1984, I issued the decision in the above
matter, holding, among other things, that United Tech-
nologies Corporation, the Respondent, had not violated
Section 8(a)(1) and (5) by its refusal to supply informa-
tion in connection with a grievance of Michael Lovely
to Industrial Aircraft Lodge 1746, Aeronautical Industri-
al District No. 91, International Association of Machin-
ists and Aerospace Workers, AFL-CIO (the Union). I
found that the obligation to furnish information had been
reduced by reason of the fact that the defenses inter-
posed by the Union to the charges of negligence had
narrowed the issues in the grievance proceeding. On 28
February 1985, the Board held that the narrowing of the
issues by the nature of the Union's defense of Lovely's
conduct had not constricted the Union's entitlement to
information needed to evaluate his grievance, and re-
manded this portion of the case to me for findings of fact
pertaining to the existence of the information requested,
conclusions of law addressing any applicable defenses
timely and properly raised by the Respondent, and credi-
bility resolutions where necessary.
On 19 April 1985 I afforded the parties an opportunity
to present further evidence and to submit statements of
their position by 17 May 1985. Both sides rested on the
record of the hearing and submitted supplemental briefs
on the questions remanded.
On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
briefs and supplemental briefs filed by the General Coun-
sel and the Respondent, I make the following
FINDINGS OF FACT
1 The General Counsel also filed a motion to strike certain portions of
the Respondent's brief, in particular appendix A, and any reference there-
to made by the Respondent We find that appendix A, a copy of a news-
paper article, was not presented as evidence at the hearing We therefore
find that it is not a part of the record in this proceeding . See Sec
102 45(b) of the Board' s Rules and Regulations Accordingly, we grant
the General Counsel 's motion to strike. See 0 & G Industries, 269 NLRB
986 fn 1 (1984)
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings
Gregg Adler and Jonathan Kreisberg, Esqs., for the Gener-
al Counsel.
Joseph C. Wells, Esq. (Farmer, Wells, McGuinn & Sibal),
of Hartford, Connecticut, for the Respondent.
James L. Kestell, Esq. (Kestell, Pogue & Deinhardt), of
Hartford, Connecticut, for the Charging Party.
1. THE UNION'S DEMAND FOR INFORMATION AND
THE COMPANY'S RESPONSE
Michael Lovely was employed as an X-ray film
reader, Labor Grade 5, inspecting aircraft engine parts in
Respondent's Quality Assurance Department. He was
supposed to review the X-ray films of engine parts to as-
certain whether they revealed defects. On 28 September
1981 he was suspended indefinitely. On 20 November
1981 Lovely was discharged. Both actions where asser-
tedly taken because of gross negligence on his part in the
interpretation of the film.
The Union filed grievances with respect to both disci-
plinary actions, taking the position that his negligence in
the review of X-ray film had existed for a long time with
the knowledge of the Company and that had the Compa-
ny taken proper steps to eliminate it when it was first
discovered matters could have been rectified with less
severe discipline.
The first-step meeting on the grievance relating to the
suspension took place on 12 October 1981. Laureen T.
Fuller, an X-ray technician who was then a shop stew-
ard, met with Ed Burke, the general foreman. Burke ap-
proved the suspension. At the second-step meeting, held
on 28 October 1981, Burke's decision was affirmed by
277 NLRB No. 70
UNITED TECHNOLOGIES CORP.
Superintendent Walter Freeman. The termination griev-
ance was submitted directly at the second-step level on
24 November 1981 to James Thomas Bowler Jr., the per-
sonnel advisor, by Senior Shop Steward Dennis Brandt,
along with a letter dated 23 November 1981 on the
Union"s letterhead, requesting production at the second-
step meeting of nine items of documentation. The
charges arise out of the Respondent's failure to furnish to
the Union, in the course of all these proceedings, four of
the items set forth in the Union's letter:
All Dept. Procedures on Audit (Past & Present)
ISID reports (whether before or after suspension
and termination)
Supervision's Report on the findings of the audit
Air Force Investigation Report
("ISID" is the acronym for the Respondent's Internal
Security Investigation Division.)
The second-step meeting on the termination was held
on 7 December 1981 at 7 p.m. at the Quality Assurance
Department at Pratt & Whitney Aircraft. It was attended
by Fuller, Brandt, Bowler, and Freeman. The above-
mentioned four items were not produced at the meeting,
though portions of what were described as "witnesses'
statements" which had been collected by the ISID were
read to the union representatives.
In the case of each of these four items, the Respond-
ent's representatives initially took the position that the
requested documentation did not exist or that they were
unaware of the existence of any such document. Later,
when it became apparent that the union representatives
had good reason to believe that they did exist, Bowler
and Freeman changed their position and asserted other
grounds for failing to comply with the request. Never-
theless, in its posthearing brief, the Respondent still con-
tends that "The evidence clearly demonstrates, however,
there simply were no records which fell into categories
(a), (c) or (d)." The categories referred to are the depart-
ment procedures on audit, supervision's report on the
findings of the audit, and the Air Force Investigation
Report. The Respondent argues that, in the absence of
any pi oof that requested documents exist, the General
Counsel has failed to establish a violation of the Act, and
that where requested records do not exist, the Company
cannot be faulted for failing to provide them to the
Union.
The determination that Lovely should be discharged
was upheld by denial of his grievance on 7 January 1982
and that decision was upheld by an arbitrator after a
hearing which took place in June 1982, at which portions
of statements given by persons characterized as "wit-
nesses" were read to the arbitrator.
With respect to the requested ISID report, the Re-
spondent asserts that all it has or has ever had are state-
ments signed by witnesses who were interrogated by
company investigators and a summary of the information
which they provided, and that as a matter of company
policy witnesses' statements are not furnished to the
Union and that such statements do not have to be pro-
duced under the holding of Anheuser-Busch, Inc., 237
NLRB 982 (1978).
585
The General Counsel contends that an Air Force In-
vestigation Report existed and a copy must have been in
the Company's possession; that audit procedures existed
and should have been produced without regard to de-
partmental application or foremen's discretion; that a
report by supervision on the findings of the audit existed
and was producible though the actual title given to it by
its authors may have been different from the title by
which the Union referred to it; that an [SID report con-
taining the conclusions of the investigation existed; and
that the witnesses' statements were not shielded from dis-
closure by Anheuser-Busch, Inc., supra.
II. THE EVIDENCE RESPECTING THE EXISTENCE OF
THE INFORMATION REQUESTED
It is to be noted at the outset that the Board concurs
with the view of the General Counsel that, in situations
where production is appropriate in response to a union
demand, data is not to be withheld because of some tech-
nical deficiency in the manner in which it is designated
in the request. If the company understands the nature of
the information requested, and it is otherwise producible,
the company may not withhold it because the union has
incorrectly identified or improperly described its title, its
form, or its author.
It is apparent, however, that in this case the Union
was not dependent on pure guesswork but had phrased
its demand on the basis of the situation as it was general-
ly understood in the plant, an understanding which was
confirmed at the grievance meetings.
A. Supervision's Report on the Findings of the Audit
At the first-step meeting of the grievance relating to
Lovely's suspension, held on 12 October 1981, Lovely
was represented by Fuller. She testified that Burke told
her that Lovely could not, be reinstated immediately, as
she had demanded, because an audit (a check to make
sure that all work was being done and all procedures
complied with) had been undertaken with respect to Lo-
vely's work and had not yet been concluded. It involved
going through all the X-ray films Lovely had been sup-
posed to review since he started on that job in 1979.
Fuller also testified that "they" (not identified, but pre-
sumably the reference is still to Burke speaking for man-
agement in general) said that at the conclusion of the
audit "there would be a report to supervision" which
would determine whether Lovely returned to work.
Burke did not testify, so her testimony is uncontroverted.
I infer that his testimony would not have been helpful to
the Respondent, for it is well settled that failure by a
party to call knowledgeable persons as witnesses gives
rise to an inference that, had they been called, their ac-
counts would not have been favorable to that party. Co-
lorflo Decorator Products, 228 NLRB 408, 410 (1977),
enfd. mem. 582 F.2d 1289 (9th Cir. 1978). See also Bech-
tel Corp., 141 NLRB 844, 845, 852 (1963); Davis Walker
Steel & Wire Corp., 252 NLRB 311 (1980); General Team-
sters Local 959, State of Alaska, 248 NLRB 693, 698
(1980).
Fuller testified that she was also told the identity of
the foreman and the other two men who would conduct
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the audit. They were described as expert X-ray techni-
cians whose task would be to check Lovely's work back
to 1979 when he started on the job.
Fuller testified that at the second-step meeting on the
termination grievance, which was held on 7 December
1981, and was attended by Fuller, Brandt, Bowler, and
Superintendent Walter Freeman, Freeman at first denied
that any such report existed. Thereupon Fuller told him
that she knew it did exist and quoted the statements
made to her by Burke. Freeman thereupon changed his
objection and stated that the report was "internal to the
company."
Brandt testified:
The first time they told us it didn't exist, there was
none, and then later on, I think they call it proprie-
tary or something like that and I questioned what
that word meant and they said internal.
The Respondent concedes that a report on the review
of Lovely's X-ray films was submitted to internal securi-
ty by an employee named Barry, who was not, however,
a supervisor. The precious argument is made that Barry
was a special assignment employee, Labor Grade Four,
and therefore his report technically was not a report by
supervision.
Bowler testified that, though he was not involved in
inspection work, the task of responding to the Union's
request for such a report fell to him. Freeman was the
only person he dealt with in the quality assurance orga-
nization. He asked Freeman whether such a report exist-
ed and Freeman told him that none existed. He commu-
nicated Freeman's negative response to the Union.
At the second-step hearing, some data was supplied
orally. According to Bowler:
In fact, he [Freeman] went through an exercise
with ex-rays, themselves, to show what exactly had
been found, quite a lengthy exercise in illustrating
to the union representatives present what, exactly,
had been discovered.
Bowler testified that he was not familiar with the de-
tails of the investigation made by the quality assurance
personnel, though he testified at length about how he
had had to learn to read the X-ray films so he could per-
ceive the defects. He testified that a piece of documenta-
tion travels with each piece of film and sets forth the dis-
position on the part X-rayed. These were shown to the
union representatives. Nevertheless, he professed not to
know any of the details of the review of the film which
Lovely had passed other than the review conducted by
Barry. He knew that a pile of films showing defects in
parts had been accumulated, but he did not know what
period of time they spanned. He was unclear-in fact,
vague and evasive-as to precisely how the data which
he obtained was turned over to him. He testified that the
quality assurance personnel did not turn a report over to
him; neither did they turn over the film. They had
records showing which films were defective and the
nature of the defects disclosed, but they did not turn
those over either. Bowler testified that the film itself
always remained with the quality assurance department;
when he wanted to see it, he went there to look at it. So
far he knew, no summary of the data collected was ever
prepared.
Bowler was asked specifically, several times, whether
there existed any document setting forth the information
found out in the Lovely case or a definitive statement of
the conclusions arrived at as a result of the investigation
of the case. His responses were as follows:
THE WITNESS: If there is such a thing, it was
never shared with me.
JUDGE LAWARENCE: You have no knowledge of
the existence of any such-
THE WITNESS: I absolutely do not, no. The com-
pany's position was the film and that was shared
with the union.
JUDGE LAWRENCE: At the time that this request
was made, was there anywhere in the files of the
company a definitive statement of the conclusions
reached upon this investigation?
THE WITNESS: No, there was not, not to my
knowledge. There were not, not that was ever
shared with me. Again, I have to repeat, I was
shown-I had to learn how to read exrays, so that I
could represent the company's case at the second
step because that was our case. In fact, I had to
have someone come in and instruct me how to do
that.
The uncontroverted testimony of Brandt and Fuller
was to the effect that the reason given for delaying
action on the demand for Lovely's reinstatement was
that the report by supervision had to be prepared so that
the Company could act in accordance with the facts.
That was stated to be the procedure that supervision in-
tended to follow.
That they did in fact follow that procedure is estab-
lished by the uncontroverted testimony of Fuller and
Brandt respecting statements made by Freeman which
indicated the existence of some form of codification of
the data. Freeman's statements related to the three of the
four items requested by the Union which Respondent, in
its posthearing brief, still asserts do not exist . Fuller testi-
fied that at the second-step meeting Freeman indicated
that these three items were part of the basis for Respond-
ent's action against Lovely:
Q. Could you tell us what was said and by
whom?
A. Yup-it was stated that-by Superintendent
Walt Freeman that they used a number of reports,
the supervision's report on the finding of the audit,
the ISID report, the Air Force investigation report
and the-those three reports basically and the audit
report, the first report from Tom Barry.
Nowhere in his testimony does Bowler contradict the
testimony of Brandt and Fuller attributing such remarks
to Freeman . Freeman did not testify ; he was not called
by Respondent and Respondent gave no explanation for
its failure to call him. Under the circumstances, as in the
UNITED TECHNOLOGIES CORP.
case of Burke, I must assume that, had Freeman testified,
his testimony would have corroborated that of Brandt
and Fuller.
In person, on the witness stand, Bowler appeared less
than candid. On the printed page, his testimony seems
hesitant, cautious , and cagey , tending to sound tentative
by reason of a kind of built-in disavowal: there was no
report that he knew of, there was no report that was
shared with him. The conditional nature of his testimony
suggests that he was simply the body sent in by Re-
spondent to parry the thrusts of the General Counsel.
The General Counsel characterizes as incredible the
Respondent's claim that the results of the review were
not put into a written report. It is not, however, alto-
gether implausible. The film was readily available and in
a sense it speaks for itself. From it, the experts could de-
termine whether the number of defective parts passed
through by Lovely warranted serious disciplinary action.
However, on the uncontroverted testimony of Brandt
and Fuller, the suspect testimony of Bowler, and the ab-
sence of testimony from Burke and Freeman, I conclude
that a report was made in writing and exists and that the
failure to produce it was deliberate, just as the produc-
tion at the hearing of an uninformed witness, such as
Bowler, instead of a knowledgeable witness such as
Freeman, must have been deliberate. At the very least,
Respondent should have supplied Barry's report, either
in connection with this request or in connection with the
request for the ISID reports discussed below. It cannot
be overlooked that the requested report was one of the
items that Freeman had said was a basis for the discipli-
nary action taken against Lovely.
Respondent's failure was not made excusable because
it produced, at the second-step meeting, the raw data on
which the report was based, the film pieces. For one
thing, the film brought into the meeting was not all of
the film which had been reviewed. Respondent brought
in only the film passed by Lovely during the last few
months of his employment. The review which had been
conducted went back to 1979. The report had to have
covered much more ground than the film produced at
the meeting. Secondly, the Union questioned whether
the film produced was that which had been passed by
Lovely.
B. Department Procedures on Audit
Fuller testified that at the second-step meeting held in
connection with Lovely's discharge, the company repre-
sentatives, Bowler and Freeman, initially asserted that
departmental audit procedures did not exist, notwith-
standing the existence of procedures for various oper-
ations. In addition, they took the position that an audit
on operations in another part of the plant would be irrel-
evant to Lovely's grievance and that "[A]nything else
that existed plantwide was considered proprietary infor-
mation." Fuller and Brandt offered to rephrase the re-
quest if the information they were seeking had been im-
properly designated in the letter. However, when Fuller
went further and commented that the general foreman,
Ed Burke, had definitely said that the procedures existed
and had made some remark indicating laxity on the
Company's part, Freeman responded that the audit pro-
587
cedure "was an internal document to the Company and
that if it had fallen into the wrong hands could be very
detrimental to the Company."
Brandt testified that Bowler was the one who initially
said that audit procedures did not exist and he confirmed
Fuller's account of what thereafter transpired. He re-
called that the Company's representatives began refer-
ring to the procedures as "internal " only after Fuller ex-
plained that she thought that a preexisting procedure had
been changed and that she wanted to demonstrate that
Lovely had in fact been following original procedures.
Brandt testified that the company representatives took
the position that there were no procedures for the specif-
ic department in which Lovely worked and that proce-
dures governing larger plant divisions are not relevant.
Brandt, on the other hand, insisted that Lovely's section
was only part of a larger whole and that the Union
could not be sure that procedures having more general
application would not be relevant to the Lovely audit
until the Union had had an opportunity to review them.
There could have been no genuine doubt about what
the Union was looking for. Brandt had asked them for
the thing, by whatever name , which constituted "the
procedure on the audit that Mr. Lovely got trapped in,
caught up in, whatever." The Respondent's disinclination
to cooperate was apparent in Bowler's testimony.
... there were standard procedures having to do
with various operations, which were present within
the procedure. There was no particular departmen-
tal audit. Anything else that existed plantwide was
considered proprietary information.
In the course of his testimony Bowler also contended
that an audit on operations in other parts of the plant
would have no relevance to Lovely's work and on cross-
examination asserted that he was not familiar with any
plantwide procedures.
Respondent calls attention to Fuller's concession (so
characterized by Respondent) that Burke had never said
the audit procedures were written down. In this fashion,
Respondent suggests that there were no written audit
procedures, without actually saying so. This type of ar-
gument, however, compels me also to consider the fact
that Burke did not say they were oral, either. In fact,
their format never came up in the discussion which
Fuller had with Burke. This type of disingenuous argu-
ment is also employed by Respondent when it seeks to
attach some significance to Fuller's so-called admission
that no audit procedures were produced by Respondent
at Lovely's arbitration proceeding. This is patently not
probative on the issue of their existence or nonexistence;
documents may fail to be produced at a hearing for all
kinds of reasons, including the possibility that they may
be more injurious than helpful to the party who has pos-
session of them. Respondent's invitation to me to specu-
late on its reason for not producing documents at the ar-
bitration proceeding cannot graduate to the level of evi-
dence absent any other evidence of truly probative
value.
For proper analysis, the Union needed access to the
documentation requested, both this specific item and the
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other items demanded. The comments of supervisory
personnel afford reasonable basis for an inference that
the documentation requested was in existence. That doc-
umentation or comparable data in some form which the
- Union could use should have been produced.
C. Air Force Investigation Report
The local news media reported that the Air Force
conducted an investigation after the discovery of Love-
ly's alleged misconduct. Its report is the third of the doc-
uments mentioned by Freeman as forming the basis of
Respondent's disciplinary action against Lovely. The
General Counsel argues that that necessarily means that
at some point Respondent must have had a copy of a
report to the Air Force. Such a conclusion is not inevita-
ble. It is as reasonable to assume that Air Force recom-
mendations or demands were communicated to Respond-
ent in some other fashion. The fact remains that, as in
the case of the other documentation, inconsistent state-
ments emanated from persons who had access to the in-
formation and the last word was that the document exist-
ed.
Fuller testified that at the beginning of the second-step
meeting the management representatives claimed that
they were not aware that the Air Force was conducting
an investigation. Toward the end of the meeting, after
Fuller told them that she had reason to believe different-
ly, Freeman said the Air Force report was an internal
document. Freeman expressly listed the Air Force report
as one of the bases for the disciplinary action against
Lovely.
Having failed to controvert the testimony of Fuller
and Brandt by producing Freeman at the hearing, Re-
spondent nevertheless persists in an evasive argument to
the effect that nothing in the record supports Fuller's
"assumption" that if the Air Force made certain require-
ments known to the Company it would have created and
turned over an investigative report and that the Compa-
ny told the Union that it was unaware of any such report
and did not have a copy. The record certainly supports
her assumption that the Respondent received some type
of communication from the Air Force regarding the
Lovely matter and, whatever it was, it should have been
produced.
I can only conclude that a report or something else ex-
isted which set forth the results of the Air Force's inves-
tigation and provided guidelines for corrective action by
Respondent, possibly including the disciplinary action
which Respondent took against Lovely.
D. ISID Reports
At the second-step meeting on Lovely's discharge
grievance, Freeman identified a report of the Internal Se-
curity and Investigation Department of Respondent as
one of the documents which Respondent relied upon in
fixing the discipline which was imposed on Lovely. That
some documentation of this nature exists is conceded by
Respondent, though its precise form and the Union's en-
titlement to it is contested. Respondent concedes, in its
posthearing brief, the existence of a report in the form of
"a collection of witnesses' statements taken by the Com-
pany's investigators and a summary of the information
provided by these witnesses." It is plain, therefore, that
some kind of report was prepared.
The intention of Respondent to embody the results of
the investigation in a report to supervisory authority was
expressed at the outset. The ISID investigator who inter-
viewed Lovely told him that the auditors of the films he
had worked on had been interviewed; that all of the in-
formation would be put together and conclusions drawn
respecting whether the errors were deliberate or whether
there had been sabotage; that a final report would be
submitted to supervision; and that if the circumstances
indicated the propriety of doing so, the report would
also be submitted to the FBI. Lovely communicated this
to Fuller, so it was reasonable for Fuller to anticipate the
existence of the report and to ask to see it.
Testimony given by Bowler indicates that the investi-
gators did what they said they were going to do:
Q. And, did you make an investigation of what
they investigated?
A. No, I did not.
Q. Or what reports or documents that they had
put together as a result of that interrogation?
A. The findings of the investigation were shared
with me, yes.
Q. They were. Did they verbally tell you what
their findings were?
A. No, there was a report prepared by internal
security.
Q. And, you didn't think that was the same
report that was being asked for by the union?
A. I provided to the union what the company
was willing to provide.
Q. So, you didn't provide them that report. ' You
provided them what you determined to provide-
A. That's correct.
Q. Whatever you determined was relevant, that
was all you were going to provide the union.
A. That's correct.
Bowler's testimony reinforces the impression left by
the conduct and statements of management representa-
tives at the second-step meeting that there was some
kind of general codification of the information gathered
together about Lovely's performance, either integral to
or as a separate document from the statements furnished
by the ISID investigators. These are referred to as wit-
nesses' statements and were furnished by three persons
named Markese, a foreman, Barry, whose statement I
have already referred to, and Kulic. The overall summa-
ry of the results of their investigation of all of the films
which Lovely had inspected since 1979 may well have
been contained in Barry's report, but this is not certain
from the evidence in the record because, though portions
of their statements were read to the union representa-
tives, the Union's request for permission to read the com-
plete statements was refused. If the witnesses' statements
were themselves the final embodiment of the results of
the investigation, then it is the statements that were the
object of the Union's request, albeit unwittingly
UNITED TECHNOLOGIES CORP.
However, the statements of management personnel,
such as Bowler's statement, which so well illustrated the
Respondent's uncooperative approach, all suggest the ex-
istence of a comprehensive summary. I have already
noted Brandt's testimony that its production was refused,
not because it did not exist, but because it was "proprie-
tary" or "internal." Respondent's disinclination to coop-
erate is also illustrated in statements made by Respond-
ent's own counsel at the hearing. In the course of cross-
examining Fuller, he implied that the final embodiment
of the investigation existed in both forms. He made refer-
ence to the statement given by a supervisor who testified
at the arbitration hearing as "part of the ISID report"
and asked Fuller whether Respondent, at the arbitration
hearing, had not (in his words) "put in supervisory re-
ports summarizing the results of the audit that was done
on Mr. Lovely's work."
Whatever form the work product of the ISID finally
took, it formed the basis for supervision's own report, as
I noted earlier, and was unquestionably the basis for the
disciplinary action against Lovely. It should have been
furnished regardless of its form and regardless of wheth-
er or not the designation was incorrect.
I cannot agree with Respondent's argument that, as
witnesses' statements, some of the reports mentioned are
shielded from disclosure under the rule of Anheuser-
Busch, Inc., 237 NLRB 982 (1978).
Merely denominating the reports of Respondent's own
technical experts as "witnesses' statements" will not
change their character as compilations of technical data
by one of its own departments. They are not witnesses'
statements in any conventional sense.
However, even if they were, they would not be shield-
ed from disclosure by the Anheuser-Busch decision,
which was rendered in a case having nothing to do with
technical data and the rationale of which would not, in
any event, cover the situation of this case. In the present
case, the identity of the persons who made the reports-
or, as the Respondent would have it, who gave the state-
ments-is already known and the nature of the informa-
tion contained in them is such that their disclosure
cannot result in recantation or modification of the facts
stated in them by reason of intimidation of the investiga-
tors who furnished the statements or anyone who might
be named in their statements. They did not investigate
incidents. They investigated pieces of film. No amount of
intimidation can change what is on that film.
There is an even more fundamental difference, howev-
er. In Anheuser-Busch the incident was one which was
capable of being investigated by the union independently
and the Board specifically pointed out that the employer
had done nothing to impede the union's investigation
(237 NLRB at 984).
In the present case, notwithstanding a request for all
the film, only the film reviewed by Lovely during the
last several months of his employment was made avail-
able to the Union and Respondent refused to furnish the
complete reports of the auditors though they had con-
cededly reviewed all of the film Lovely had worked on
back to 1979. This Respondent did precisely what the
employer in Anheuser-Busch had not done-it impeded
the Union's investigation. Respondent said it relied on all
589
the film, but did not make either all the film or the com-
plete reports of its review by the auditors available. It
should have supplied the film it said it relied on. Square
D Electric Co., 266 NLRB 795 (1983). Furthermore, Re-
spondent's failure to assert any reasonable need to keep
the reports confidential leaves it in the position of having
given no suitable rationale whatsoever for its refusal to
make them available. Accordingly, I find Respondent's
conduct to have been an obstruction and in violation of
the Act. See Detroit Edison Co. v. NLRB, 440 U.S. 301
(1979).
CONCLUSIONS OF LAW
By refusing to furnish supervision's report on the find-
ings of the audit, all departmental procedures on audit,
Internal Security Investigation Division reports, and the
Air Force investigation report in connection with the
grievance of Michael Lovely, Respondent has engaged
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.
THE REMEDY
Having found that in this additional respect Respond-
ent has violated Section 8(a)(5) and (1) of the Act, I shall
recommend that it be ordered to cease and desist and to
take certain affirmative action designed to effectuate the
policies of the Act. I shall recommend that the Respond-
ent be directed forthwith to turn over to the Union the
information requested in connection with the grievance
of Michael Lovely. Notwithstanding the findings of fact
hereinabove set forth, it may well be that Respondent
will take the attitude that it is stuck with its story and
must continue to insist on the nonexistence of the docu-
ments requested and the impossibility of their production
notwithstanding the provisions of any recommended
Order herein. It should therefore be made clear to the
Respondent that equivalent information must be fur-
nished.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER
The Respondent, United Technologies Corporation,
Hartford, Connecticut, its officers, agents, successors,
and assigns, shall take the following affirmative action
necessary to effectuate the policies of the Act.
Furnish, in timely fashion, to the Union, the following
information requested by the Union in connection with
the grievance of Michael Lovely, in whatever form it
exists, including the documents as designated in the
Union's request or any documents which appear to fit
the description: all information and documentation in its
possession which contain the substance of supervision's
1 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
report on the findings of the audit, all departmental pro-
cedures on audit , Internal Security Investigation Division
reports, and the Air Force investigation report.