Western Electric, Inc.

National Labor Relations Board - Board Decisions

Sep 17, 1976

225 N.L.R.B. 1374 (N.L.R.B. 1976)

1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Western Electric, Inc. and International Brotherhood
of Electrical Workers, Local No. 1974. Case 17-
CA-6738-2
September 17, 1976
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND WALTHER
On June 10, 1976, Administrative Law Judge Rus-
sell M. King, Jr., issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge, except
as modified herein.
We agree with the Administrative Law Judge's
finding that Respondent violated Section 8(a)(5) and
(1) by its failure to provide the Union with certain
requested information. However, we do not agree
with his failure to order that Respondent cease and
desist from any like or related conduct and that it
post an appropriate notice to employees. In failing to
so order, the Administrative Law Judge relied on
Curtiss-Wright Corporation, Wright Aeronautical Divi-
sion,2 where similar information was ordered fur-
nished, but no notice posting was required and relat-
ed conduct was not prohibited. However, that case is
distinguishable from the situation herein for the rea-
son that the information sought had been furnished
to the union therein prior to hearing. Thus, the re-
spondent in that case had already evidenced its in-
tention to comply with the Act. Since in the instant
case there is no evidence that the information in
question has been furnished to the union representa-
tives, we find it necessary and appropriate in order to
fully remedy the violation herein that Respondent be
ordered to cease and desist from any like or related
conduct and to post an appropriate notice to employ-
ees.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Western Electric, Inc., Omaha, Nebraska, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to furnish International Brotherhood
of Electrical Workers, Local No. 1974, with the
names, grades, rates of pay, ratings, service dates,
department numbers, and qualifications of those sal-
aried and nonunit employees having lesser service
than those who have most recently been transferred
into the bargaining unit represented by said labor
organization.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Henceforth and upon request of the above-
named labor organization, furnish it with the names,
grades, rates of pay, ratings, service dates, depart-
ment numbers, and qualifications of those salaried
and nonunit employees having lesser service than
those who have most recently been transferred into
the bargaining unit represented by said labor organi-
zation.
(b) Post at its office at Omaha, Nebraska, copies
of the attached notice marked "Appendix." 3 Copies
of said notice, on forms provided by the Regional
Director for Region 17, after being duly signed by
Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
Z 145 NLRB 152 (1963), enfd 347 F 2d 61 (C A 3, 1965)
7 In the event this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
225 NLRB No. 199
WESTERN ELECTRIC, INC.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to furnish International
Brotherhood of Electrical Workers, Local No.
1974, with the names, grades, rates of pay, rat-
ings, service dates, department numbers, and
qualifications of those salaried and nonunit em-
ployees having lesser service than those who
have most recently been transferred into the
bargaining unit represented by said labor orga-
nization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights guaranteed under
Section 7 of the National Labor Relations Act.
WE WILL, upon request of the above-named
labor organization, furnish it with the names,
grades, rates of pay, ratings, service dates, de-
partment numbers, and qualifications of those
salaried and nonunit employees having lesser
service than those who have most recently been
transferred into the bargaining unit represented
by said labor organization.
WESTERN ELECTRIC, INC.
DECISION
STATEMENT OF THE CASE
RUSSELL M. KING, JR., Administrative Law Judge. This
case was heard by me in Omaha, Nebraska, on January 20,
1976. The charge was filed on September 25, 1975,' and the
complaint was issued on November 17. The issue is wheth-
er or not Western Electric, Inc , (Respondent) violated Sec-
tion 8(a)(1) and (5) of the National Labor Relations Act
(Act) by failing to turn over to the International Brother-
hood of Electrical Workers, Local No. 1974 (the Union),
certain information pertaining to nonunit employees.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel, the Union, and the
Respondent, I make the following-
FINDINGS OF FACT
1. JURISDICTION
The Respondent corporation, at its plant located at
Omaha, Nebraska, is engaged in the business of manufac-
turing, selling , and shipping electrical communications
All dates are in 1975 unless otherwise stated
1375
equipment valued in excess of $50,000 annually directly to
enterprises located in States other than Nebraska. The Re-
spondent submits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. I further find, as admitted, that the
Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Since March 4, 1957, the Union has represented the
Respondent's hourly rated nonsupervisory production and
maintenance employees in its Omaha plant. The current
collective-bargaining agreement expires August 6, 1977. In
the fall of 1974, the Respondent began to "surplus" z em-
ployees, and as a result by early February the bargaining
unit had shrunk from approximately 5,000 employees to
approximately 3,000 employees. During this period, non-
unit employees had decreased from approximately 1,100-
1,200 to approximately 825. In March, the Union request-
ed information regarding employees who had been trans-
ferred into the unit, but further regarding all of
Respondent's nonunit and salaried employees having less
seniority than those already transferred into unit. It is the
latter category of nonunit employees that is in controversy
here. The Union has filed a number of grievances regard-
ing those employees already transferred into the unit. Fear-
ing that its ranks will be further depleted by "surplusing"
and transferring employees, the Union seeks the informa-
tion regarding the seniority of employees with a potential
for transfer in order to compare their seniority with that of
recent arrivals into the unit and for future information in
evaluating contemplated transfers.
B. Summary of the Evidence
1. Testimony of Michael D. Quinlan
Michael D. Quinlan has been president and business
manager of the Union for approximately 5 years. He has
been employed by the Respondent for 16 years. Most of
his dealings were with James Bosworth, the Respondent's
manager of industrial labor relations. In mid-February,
Bosworth told Quinlan that the Respondent was again ex-
periencing a surplus among salaried employees and that
some of these employees were going to be placed into the
bargaining unit. Quinlan "strenuously" objected to the
transfers and indicated to Bosworth that the Union was
"going to take him on it through grievances and arbitra-
tion." Quinlan's main worry was his declining unit by vir-
tue of "surplusing." He feared further losses through the
transfer of salaried employees into the unit with less senior-
ity than existing unit members.
On March I1 and 13, Quinlan wrote to Bosworth re-
2 The term "surplus" applies to excess employees within a certain depart-
ment When an employee becomes "surplus," he is either placed in another
job or laid off The Respondent determines when an employee becomes
excess or "surplus" through seniority and as reflected in the Respondent's
own classification and grading records
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
questing information regarding employees who had al-
ready been transferred into the unit and further requesting
information about salaried (nonunit) employees with less
service or seniority than those who had already been trans-
ferred. Bosworth replied by letter dated March 27 wherein
the requested information regarding those employees al-
ready transferred was furnished. The requested informa-
tion regarding salaried and nonunit employees with less
seniority than those transferred was refused and continues
to be withheld.3
In early April, Quinlan again met with Bosworth and
renewed his request, which was again refused. According
to Quinlan, Bosworth stated that "the Company's position
[was] that the Company determines relevancy." °
Quinlan also testified that he was unconcerned about the
Respondent's proper "movement of personnel" under arti-
cle 27 of the contract, which provides for grievance proce-
dures when the Union objects to or challenges transfers.5
Many of the nonunit employees who had been transferred
into the unit had lodged complaints, through the Union,
alleging a violation of article 27 in their transfer. These
complaints were the subject of numerous grievances that
had been formally filed by the Union. According to Quin-
lan, a controversy arose over the term "employees of the
Company," as used in article 27. The Respondent contends
that the term applies to all employees and the Union main-
tains that it applies to only employees within the bargain-
ing unit. According to Quinlan, the Respondent's interpre-
tation of the term was a basis on which salaried and
nonunit employees were transferred into the unit. Quinlan
in testimony, further elaborated on the Union's position as
follows:
We believe . . . that the Company is not reasonable,
as defined in Article 27, . . . in moving salaried people
into the bargaining unit. We are prepared to take that
case to arbitration. We believe that they are granting
superseniority to salaried people. They are giving ben-
efits, if you will, under the movement of personnel
that are not made available to the bargaining unit peo-
ple. They create phony vacancies, and then subse-
quently a week or so later they surplus out one of our
3 Regarding the refusal, Bosworth's letter of March 27 states, in part as
follows
The information requested in Item I of your letters involving unidenti-
fied personnel who are not represented by the Local Union. with lesser
service than the employees listed, cannot be associated with specific
individuals Consequently, we are unable to establish any relevance to
grievances you are currently processing
A The collective-bargaining agreement between the Respondent and the
Union is silent as to furnishing information of any kind or nature
5 Art 27 of the contract contains lengthy and complex provisions relative
to the movement of personnel into and out of variousjob categories within
the bargaining unit Included in art 27 is the following language regarding
union objections
If the Union objects to any move made in accordance with the provi-
sions of this Article, the matter may, if presented within ten (10) days
after the effective date of such move, be processed in accordance with
ARTICLE 9, GRIEVANCE PROCEDURE, and ARTICLE 10, AR-
BITRATION, provided that in any such case the authority of the arbi-
trator shall be limited to a determination as to whether the Company's
judgment has been unreasonably exercised
Further, and regarding surplus employees, art 27 states "a surplus employee
who cannot be placed in accordance with this paragraph 3 shall be LAID
OFF"
bargaining unit people or lay them off. We believe we
can prove that, but the only way we can prove it is to
get into the area of how . . . they surplus salaried peo-
ple.
Now, they claim that these people are surplus, the sal-
aried people, and by virtue of being surplussed that
they are eligible under the Company's interpretation
of the contract to fill vacancies . . . [ in the bargaining
unit].
In cross-examination, Quinlan further indicated, in sim-
ple terms, that he needed the requested information regard-
ing nonunit, salaried employees to insure that they were
not in fact "surplussed" before they were transferred into
the bargaining unit. He also reiterated that he was aware of
the fact that while the unit employees decreased from ap-
proximately 5,000 to approximately 3,000 from September
1974 to February 1975, the salaried and nonunit employees
had decreased from approximately 1,200 to approximately
850.
The requested information includes the individual's
"rate of pay." 6 Quinlan justified the request for this infor-
mation by explaining that, to his knowledge, the grading
system for salaried and nonunit employees was different
from that of unit employees, and that the only manner in
which he could insure transfers into a comparable grade
was to compare the former salary of the transferred em-
ployees to the salary set for the position being filled in the
bargaining unit . Additionally, and according to Quinlan, a
salaried and nonunit employee would occupy a particular
grade based, in part at least, on his work or job " rating"
(outstanding, good, or marginal), as opposed to seniority,
and thus the employees' "rating" was also contained in the
requested information.
Quinlan further reiterated on cross-examination that the
Union's interest was not in the requested information re-
garding all salaried employees, but only in those with a
"potential" for transfer into the bargaining unit.' Quinlan
also testified that he had been accused by "management"
of trying to represent nonunit employees He denied the
accusation, stating that "we want nothing to do with them
... they are a bunch of cry babies."
2. Testimony of James Bosworth
James Bosworth has been employed by the Respondent
for 35 years. He has been manager of industrial labor rela-
tions at the Omaha, Nebraska, plant for over 8 years. Bos-
worth defined a "salaried" employee as "a supervisor, a
technical or professional individual or other nonprofes-
6In the cross-examination of Quinlan, the questions of Respondent's
counsel lead me to conclude a singular and more serious objection to fur-
nishing the "rate of pay" of salaried. nonunit employees than other informa-
tion requested
r The Union's formal request for information pertained to all salaried
employees with less seniority than the most recent transferred employee (as
of the date of the request) I take this to mean that Quinlan indicated the
Union's desire to receive only information regarding employees that were
vulnerable to transfer in the opinion of the Respondent I did gather a
distinct impression from Quinlan's testimony that the Union would accept,
on the basis of "trust " the word of the Respondent in this regard and would
further assume that, in fact, no salaried employees whose names would not
appear in the requested information would be actually transferred in the
future
WESTERN ELECTRIC, INC.
sional salaried employees." He indicated that presently 8
there are approximately 700 salaried employees at the
Omaha plant and that, during 1975, there was a reduction
of approximately 300-350 salaried employees. Of those
300-350 employees leaving in 1975, Bosworth indicated
that approximately 40-45 transferred into the bargaining
unit. The majority of the balance were "laid off." Bosworth
indicated that the Respondent, in selecting salaried em-
ployees as surplus, did not consider whether or not the
employee had formerly been a member of the bargaining
unit.
Bosworth conceded that the Respondent could readily
furnish the information which had been refused but con-
tended that it could in no way aid the Union. In this con-
clusion , Bosworth testified that it was not possible for the
Respondent to determine which of the salaried employees
might be transferred into the bargaining unit at a future
date. In explanation, Bosworth testified that the "move-
ment of personnel" practices for salaried employees is dif-
ferent from that in the union contract and as applied to
unit personnel . He further testified that these (salaried and
nonunit) movement-of-personnel practices affected the
Respondent's evaluation and selection of those salaried
and nonunit employees who are selected as surplus. Bos-
worth further indicated that, once an employee is selected
as surplus, he may have several alternatives, including
transfer, voluntary layoff, resignation, and retirement .9
Bosworth reiterated on cross-examination that he did
not feel that the information denied the Union was "rele-
vant" in his opinion, and that the Respondent's interpreta-
tion of the language "employees of the Company," as used
in article 27 of the contract, included all employees, wheth-
er salaried or unit employees.10 Bosworth further conceded
that in his opinion, and under article 27 of the union con-
tract, bargaining unit employees could "bump" salaried
and nonunit employees or could fill vacancies which had
been declared surplus among the salaried and nonunit
ranks, providing they were qualified 11 Bosworth further
conceded that the possibility does exist that, upon transfer
of a salaried employee into the bargaining unit, a unit em-
ployee may be displaced or laid off because of the transfer
In referring to "seniority," Bosworth explained that senior-
ity is gained equally among all employees, whether salaried
or unit employees, and further that no seniority is lost by
transferring from one group to another,12
81 take "presently," as used here, to mean as of the date of the hearing
(January 20, 1976)
91 conclude here that an individual employee may have one or more
options upon being informed of his impending doom through "surplus "
Whether the employee is actually considered "surplus" before selecting his
option was not made clear in the record but appears to be of no conse-
quence, for the result remains the same Either the employee chooses to be
transferred into the bargaining unit (if given that option) or the employee
chooses another possible option if available
10 The Union would confine the term to unit employees only According
to Quinlan, the disagreement is currently (or will be) the subject of arbitra-
tion
11 This opinion and interpretation would appear to be the only interpreta-
tion plausible in light of the Respondent 's position that the term "employees
of the Company" encompasses all employees
i2 This conflicts in part with Quinlan's testimony regarding the fact that a
salaried employee 's "rating" affects his "grade "
111. EVALUATION OF LAW AND EVIDENCE
1377
The Union requests here information regarding nonunit
employees with a "potential" for transfer into the unit.
Specifically, the Union asked for the "names, grade, rate of
pay, rating, . . . service date, department number and
qualifications" of those salaried employees having "lesser
service than" those salaried and nonunit employees who
have recently been transferred by the Respondent into the
unit.13 The Respondent concedes that the information is
readily available but refuses to produce it, claiming that
the information is not relevant to the Union's activities and
its duties and responsibilities under the contract. I disagree.
I am not at liberty here to determine the definition of
"employees of the Company" as used in article 27 of the
contract (Movement of Personnel). However, the
Respondent's position in this respect (and in this case)
hinders its position herein. The Union has a duty to repre-
sent all of its unit members equally, whether union mem-
bers or not. The effect of the Respondent's present proce-
dure for transfers requires the Union to accept, on "blind
faith," the legitimacy of the transfers to be in accordance
with the established system of seniority and qualifications
as set forth in the contract. Although I detect in this case a
generally harmonious relationship between the parties,
both past and present, the current transfer procedures are
endangering that relationship and the Union's effective-
ness in legitimate endeavors.
Specifically, I find that the Union has shown as follows:
(a) That its unit has lost approximately 2,000 employees
(from 5,000 to 3,000) during the 5-month period between
September 1974 and February 1975.
(b) That significantly large numbers of grievances have
been filed by or through the Union regarding unit employ-
ees, previously transferred from the salaried and nonunit
side, and on account of their transfer.
(c) The grading procedures of salaried and nonunrt em-
ployees is different from that of unit employees and as set
forth in the contract.
(d) The criteria used by the Respondent in declaring an
employee "surplus" is different in both groups.
(e) Under the present procedure, the Respondent has
initial, sole, and unilateral authority to "surplus" or lay off
employees in both groups, enabling the Respondent to first
create vacancies in the unit and thereafter to fill such va-
cancies with nonunit employees whose seniority or qualifi-
cations may not have supported the transfer had it not
been for the creation of the vacancy
(f) The Respondent can presently transfer employees
into the unit when they would or should be "surplussed"
out of the salaried and nonunit group but whom the Re-
spondent, for whatever reason, desires to keep employed
and thus on the Respondent's payroll.
I find that the requested information has been shown
herein by the Union to be relevant, its denial could hinder
13 There is no evidence in the record as to what percentage of unit em-
ployees are union members or what percentage ( if any) of the transferred
employees have become union members Likewise, the record is void of
information as to what percentage of employees laid off from the unit were
union members or had been transferred from the salaried and nonunit side
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
further contract negotiations , 14 could make difficult future
decisions of the Union regarding the filing of future griev-
ances, and of more immediate significance , has hampered
and will hamper the Union in its duties and responsibilities
in connection with arbitration intended to clarify the par-
ties' adverse interpretations of the contract .15 This case
falls squarely within the Board 's holding in Curtiss-Wright
Corporation, 145 NLRB 152 ( 1963), enfd . 347 F.2d 61 (C.A.
3, 1965), where similar information was ordered furnished.
It shall be so ordered here.
IV. THE REMEDY
As was found in Curtiss-Wright, supra, I so find here,
that a narrow order would be more appropriate and suffi-
cient, and that to require the Respondent to post a notice
would unnecessarily stigmatize it, would serve no useful
!4 The present contract expires August 6, 1977
5 Even without so finding regarding future contract negotiations and fu-
ture grievances, the outcome herein would remain the same, based on the
demonstrated relevancy of the requested information to pending grievances
The information will, in my opinion, facilitate the bargaining process in all
three areas
purpose, and might create rather than quiet labor trou-
bles.l6
CONCLUSIONS OF LAW
The Respondent , by withholding the names , grade, rate
of pay, rating , service date, department number , and quali-
fications of those salaried and nonunit employees having
lesser service than those salaried and nonunit employees
most recently transferred into the unit, has committed un-
fair labor practices affecting commerce within the meaning
of Section 2(6) and (7) and Section 8(a)(1) and (5) of the
Act.
[Recommended Order omitted from publication.]
16 As mentioned herein , I detected a history of trust and a good relation-
ship between the Respondent and the Union Thus, I considered limiting
the names and attendant information to those employees who, in the
Respondent 's opinion , had a "potential" for transfer I further considered
limiting the said names and information to those employees whose transfer
is "contemplated " or will be transferred in the future, said names and infor-
mation to be turned over within a certain period of time prior to transfer
However , and upon reflection , I concluded that in such an order potential
problems could arise The order will thus be unequivocal and without con-
tingency