Westinghouse Electric Corp.

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 703 (N.L.R.B. 1991)

703
304 NLRB No. 89
WESTINGHOUSE ELECTRIC CORP.
1 We adopt the judge’s remedy in the absence of any demonstrated rel-
evance of the requested information apart from the relevance demonstrated
with respect to the already concluded arbitration of Pena’s discharge. Further,
we note that no party excepted to the judge’s finding that the arbitrator was
without authority to reopen the arbitration.
1 Respondent’s amended answer admits it is an employer engaged in com-
merce within the meaning of Sec. 2(6) and (7) of the Act and meets one of
the Board’s applicable discretionary jurisdictional standards. Also Respond-
ent’s answer admits the Union is a labor organization within the meaning of
Sec. 2(5) of the Act.
Westinghouse Electric Corporation and Inter-
national Association of Machinists and Aero-
space Workers, AFL–CIO, District Lodge No.
13, Local Lodge No. 565. Case 32–CA–11310
August 27, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On March 26, 1991, Administrative Law Judge
Jerrold H. Shapiro issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Westinghouse Electric Cor-
poration, Sunnyvale, California, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
Patricia Milowicki, for the General Counsel.
Brian K. Williams, for the Respondent.
Ted Neima, for the Charging Parties.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge. The
hearing in this case held on January 18, 1991, is based upon
an unfair labor practice charge filed on August 3, 1990, by
International Association of Machinists and Aerospace Work-
ers, AFL–CIO, District Lodge No. 93 and Local Lodge No.
565 (the Union), and a complaint issued September 18, 1990,
against Westinghouse Electric Corporation (Respondent), on
behalf of the General Counsel of the National Labor Rela-
tions Board, by the Regional Director of the Board, Region
32, alleging that Respondent has engaged in, and is engaging
in, unfair labor practices within the meaning of Section
8(a)(1) and (5) of the National Labor Relations Act (the
Act). More specifically, the complaint alleges that the Union,
which represents a unit of Respondent’s employees, in con-
nection with a contractual grievance it filed against Respond-
ent contesting the termination of a unit employee, on May
23, 1990, asked Respondent to furnish it with the names of,
and the disciplinary action taken against, all employees, unit
as well as nonunit, who had violated Respondent’s plant rule
A.8. The complaint further alleges this information was nec-
essary for, and relevant to, the Union’s performance of its
function as the representative of the unit employees, and that
since on or about August 13, 1990, Respondent has refused
to furnish the information, in violation of Section 8(a)(5) and
(1) of the Act.
In its amended answer to the complaint Respondent denied
engaging in the alleged unfair labor practice, and admitted
‘‘that the Union, on or about May 23, 1990, requested Re-
spondent to furnish it with the names and disciplinary actions
of all unit and nonunit employees who violated plant rule
A.8, and that Respondent provided the disciplinary action
logs of all unit and non-unit non-exempt employees.’’1
On the entire record, from my observation of the de-
meanor of the witnesses, and having considered the General
Counsel’s and Respondent’s posthearing briefs, I make the
following
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Evidence
Respondent is a corporation with a place of business in
Sunnyvale, California, the only facility involved in this case,
where it manufactures marine equipment. The Sunnyvale fa-
cility, Respondent’s marine division, employs approximately
2600 employees of whom approximately 1400 are classified
as ‘‘non-exempt’’ and approximately 1200 are classified as
‘‘exempt.’’ The employees classified as nonexempt are paid
by the hour and are represented by various labor organiza-
tions. The employees classified as exempt are paid a salary
and are not represented by a labor organization. They are
employed as administrative, managerial, supervisory, and
professional employees.
The Union represents a bargaining unit of mechanical pro-
duction and maintenance employees employed at the Sunny-
vale facility (the unit). During the time material there were
approximately 700 employees employed in the unit. The
Union has represented the unit employees since at least 1949
and, with Respondent, has been party to successive collec-
tive-bargaining agreements covering those employees. The
most recent agreement was effective by its terms from Au-
gust 29, 1988, through August 25, 1991.
Section 8 of the current agreement provides for a multistep
grievance procedure ending in binding impartial arbitration,
which covers among other things grievances concerning em-
ployees’ discipline. The sole reference to Respondent’s obli-
gation to furnish the Union with information in connection
with the processing of an employee’s grievance, is set forth
in paragraph E3(a) of section 8, and reads as follows:
The arbitrator shall have no authority to issue any sub-
poena or other form of legal process or award to com-
pel either party to produce new evidence (not already
presented during processing of the grievance in the
grievance procedure) considered by such party to be
704 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 All dates hereinafter refer to the year 1990 unless specified otherwise.
confidential or not relevant or material to the proceed-
ing, or which is not available. This shall not limit the
arbitrator’s authority to compel the production of infor-
mation which this Agreement requires either party to
provide to the other.
All of the persons employed at the Sunnyvale facility, the
exempt as well as the nonexempt employees, are covered by
the same plant rules, which are set forth in detail in a book-
let distributed to the employees. The exempt, as well as the
nonexempt employees, are expected to obey the rules. The
rule involved in this case, plant rule A.8, reads as follows:
A. Any of the following actions by an employee are
considered extremely serious misconduct and may re-
sult in discharge. . . .
8. Fighting, assault, horseplay or other disorderly con-
duct.
The management official responsible for administering dis-
cipline imposed upon employees for violating the plant rules,
insofar as those rules apply to the nonexempt employees, is
the facility’s manager of union relations, Greg Wilson Jr.,
who has occupied this position since 1972. During his tenure
as manager of union relations, Wilson’s policy has been to
apply the plant’s rules in a uniform and consistent manner.
In order to be sure that the plant’s rules are being applied
in a uniform and consistent manner, Wilson has maintained
‘‘Disciplinary Action Logs’’ for each one of the rules, in-
cluding rule A.8. The logs contain the following information:
in chronological order, the name of each nonexempt em-
ployee disciplined for having violated the rule involved; the
employee’s department; the disciplinary action imposed, i.e.,
discharge, written warning, suspension, and number of days
suspended; and, a brief description of the basis of the dis-
cipline, including whether it was based upon the employee’s
violation of more than that rule.
Wilson makes the ultimate decision whether a nonexempt
employee has violated a plant rule and, if so, what, if any,
discipline will be imposed. His reason for maintaining the
above-described logs is to insure that disciplinary action im-
posed upon nonexempt employees for violating Respondent’s
plant rules is imposed uniformly, with the same degree of
discipline being imposed upon the employees for engaging in
similar misconduct. In this regard, Wilson testified, ‘‘in
viewing the facts and circumstances in any potential case of
discipline I will certainly refer to the log to see what the his-
tory shows on non-exempt employees and use that as a basis
for establishing the proper discipline for the case at hand.’’
As I have noted supra, all of Respondent’s employees, in-
cluding those classified as exempt employees, are covered by
and expected to obey Respondent’s plant rules, including rule
A.8. Wilson is not responsible for administering the plant
rules insofar as they apply to the exempt employees. Another
management official, who occupies a position similar to Wil-
son’s, is responsible for administering the plant rules insofar
as they cover the exempt employees. In determining whether
or not a nonexempt employee has violated a plant rule and,
if so, how the employee should be disciplined, Wilson does
not consider the manner in which exempt employees have
been treated. In fact Wilson has no knowledge whatsoever of
how exempt employees are treated in connection with al-
leged violations of plant rules.
On or about March 29, 1990,2 unit employee Rudy Pena
was discharged by Respondent for allegedly engaging in dis-
orderly conduct, in violation of plant rule A.8.
On April 4 the Union, on Pena’s behalf, filed a contractual
grievance protesting his discharge. The grievance alleged in
substance that the Union thought Pena’s discharge was ‘‘un-
just’’ because Supervisor Tom Ruiz had not been discharged
even though Ruiz had engaged in the same type of disorderly
conduct which Pena had allegedly engaged in. When the rep-
resentatives of Respondent and the Union were unable to re-
solve the grievance at the initial steps of the contractual
grievance procedure, the Union requested arbitration and on
September 6 the grievance was heard by an impartial arbitra-
tor, as required by the contractual grievance procedure. There
is nothing in the record which indicates how Pena’s griev-
ance was resolved by the arbitrator. However, in its
posthearing brief at footnote 2, Respondent represents that on
January 14, 1991, the arbitrator denied Pena’s grievance.
On May 23 William Leumer, the Union’s president and
chief steward, prepared an information request which he
signed and addressed to Respondent’s union relations man-
ager, Wilson, and to Dale MoDavis, the area manager for the
area in which Pena worked. The May 23 information request
reads, in pertinent part, as follows:
. . . In order for the union to prepare its case and proc-
ess the Pena grievance, the union requests the following
information from the company: 1) Copies of ALL bar-
gaining unit and non-bargaining unit disciplinary
records (hourly, salaried and professional employees) in
regards to the specific discipline issued for violations of
plant rule A.8; specific names we have in mind at this
time are Tom Ruiz, Ray Rios, Pat Atters, Richard
Barenchi, Nick Gilman, Nadeen Allison and Elizar Sali-
nas. These above names do not constitute our only re-
quests; we repeat, we want ALL the disciplinary records
for violations of A.8 that the Company has. . . . 3)
Names of any employees who violated Rule A.8 but
were not disciplined.
The union deems 15 work days to be ample time for
the information requested to be provided. If there is a
need for an extension, contact me as soon as possible.
The employees specifically named in the May 23 informa-
tion request were all bargaining unit employees represented
by the Union except for Tom Ruiz, a supervisor, and Nadeen
Allison and Pat Atters, who were employed in another bar-
gaining unit. Leumer asked for the information concerning
those three employees because Ruiz had assaulted him and
not been discharged, and as far as Leumer knew, otherwise
disciplined for engaging in that conduct, even though Leumer
had complained about it to management, and Leumer had
been informed by officials of the union which represented
Allison and Atters that they had a physical altercation in the
plant, yet neither one had been terminated.
On May 23 Leumer handed the above-described May 23
information request to Supervisor David Weissbart, Pena’s
immediate supervisor, who works under the supervision of
705WESTINGHOUSE ELECTRIC CORP.
3 Based upon Phillips’ testimony. In crediting his testimony I considered that
Phillips was not able to locate a copy of the June letter and considered Wil-
son’s testimony that no such letter was ever received by him. I credited Phil-
lips’ testimony because his testimonial demeanor was good, whereas Wilson’s
was poor and because, as described in detail infra, in August Wilson wrote
Phillips stating, among other things, ‘‘enclosed is a copy of my log regarding
IAM Local 565 represented employees disciplined under plant rules A.8 in re-
sponse to the union’s request for information dated June of 1990.’’ [Emphasis
added.]
4 In the case of several of the names that were whited out, the remainder
of the information on the log pertinent to those names was not whited out.
Wilson testified it was his intent to white out all of the information connected
with those names, but inadvertently failed to do so. The record establishes that
absent the names of the employees, the information inadvertently not whited
out concerning those names could not be used by the Union to determine
whether or not Respondent had treated Pena disparately.
5 Based upon Phillips’ testimony. Wilson testified that this conversation
never occurred. I credit Phillips because his testimonial demeanor was good,
whereas Wilson’s was poor.
Area Manager MoDavis. After Weissbart read the request,
Leumer explained to him the Union needed the requested in-
formation because it did not think Respondent had treated
Pena fairly, that other people had been disciplined less se-
verely, or not at all, for engaging in comparable conduct.
Weissbart accepted the information request and stated he
would give it to MoDavis.
A few days later Leumer spoke to MoDavis and asked
whether he received the May 23 request for information.
MoDavis answered that Weissbart had given him the request
and that he was transmitting it to Union Relations Manager
Wilson and Wilson would handle the matter.
Wilson testified that on or about May 23 MoDavis in-
formed him he had received a request for information from
the Union. Wilson further testified he instructed MoDavis to
transmit the request to him and that he would handle it, but
did not receive the May 23 information request from
MoDavis and that it did not come to his attention until the
week of the hearing in this case. I reject Wilson’s testimony
that he did not receive the Union’s May 23 information re-
quest from MoDavis. I find MoDavis transmitted the request
to Wilson, who received it some time late in May. This con-
clusion is based upon: Wilson’s poor testimonial demeanor;
Respondent’s failure to call Area Manager MoDavis to cor-
roborate Wilson’s testimony, which warrants the inference
that MoDavis would have testified he transmitted the infor-
mation request to Wilson; and, Respondent’s admission in its
answer to the complaint that on or about May 23 the Union
requested Respondent to furnish it with the information set
forth in the Union’s May 23 information request.
When there was no response from Respondent to the
Union’s May 23 request for information, Charles Phillips, the
Union’s business representative, wrote Respondent in June
and in this letter, referring specifically to the Union’s May
23 information request, asked that the information requested
therein be provided.3
On August 3 the Union filed its unfair labor practice
charge in the instant case. It was received by Respondent on
August 6.
On August 13, in response to Phillips’ June letter and to
the Union’s charge, Wilson wrote Phillips, as follows:
Enclosed is a copy of my log regarding IAM Local 565
represented employees disciplined under plant rule A.8
in response to the union’s request for information dated
June of 1990. The balance of the information requested
May 22, 1990 is not available to you and/or has not
been determined for the arbitration hearing.
As you know, this relates to your NLRB charge filed.
Call me if you have any questions.
As indicated in Wilson’s August 13 letter, enclosed with
the letter was the disciplinary action log maintained by Wil-
son for plant rule A.8. As noted previously, this log con-
tained the following information: in chronological order, the
name of each nonexempt employee disciplined for violating
rule A.8; the employee’s department; the disciplinary action
imposed, i.e., discharge, written warning, suspension, and
number of days suspended; and, a brief description of the
basis for the discipline including whether the discipline was
based upon more than just a violation of rule A.8. However,
the copy of the log enclosed with Wilson’s August 13 letter
did not contain the names of all of the nonexempt employees
disciplined for violating rule A.8. Rather it contained only
the names of the nonexempt employees who had violated the
rule and were in the bargaining units represented by the
Union and IAM Local 322. Wilson whited out the names of
the nonexempt employees who had been disciplined for vio-
lating rule A.8, but were not in the bargaining units rep-
resented by the Union and IAM Local 322.4 Also not fur-
nished to Phillips, in Wilson’s August 13 response, were the
names of those employees classified as exempt employees
(supervisory, managerial, administrative, professional), dis-
ciplined for having violated rule A.8, or not disciplined for
violating that rule. Neither this information nor the whited
out information in the log sent to Phillips by Wilson has ever
been furnished to the Union by Respondent.
Between his receipt of Wilson’s August 13 letter, on Au-
gust 15, and the September 6 arbitration hearing concerning
Pena’s grievance, Phillips complained to Wilson about Re-
spondent’s failure to supply the Union with all of the re-
quested information. He told Wilson he had been requested
by the Union’s steward and chief steward to get all of the
information which had been requested and would like to
have that information. Wilson replied by stating that the in-
formation not furnished by Respondent pertained to other
bargaining units and to management and professional em-
ployees, and stated that Respondent did not have to supply
the Union with that information, that it was not required to
do so and did not intend to do so.5
It is undisputed that during the hearing before the arbitra-
tor concerning Pena’s grievance, the Union did not ask the
arbitrator to compel Respondent to furnish it with the re-
quested disputed information herein or otherwise seek the aid
of the arbitrator in requiring Respondent to supply the dis-
puted requested information herein. The Union’s failure to do
so is not very surprising because as discussed infra, under
the provisions of the parties’ collective-bargaining contract
the arbitrator had no power to compel Respondent to furnish
this information.
During the arbitration hearing, in support of its case
against Pena, Respondent showed the arbitrator a copy of the
disciplinary action log maintained by Wilson for rule A.8
violations. Respondent showed the arbitrator the identical
‘‘whited out’’ copy of the log that Wilson had furnished to
the Union. In the past, however, when Respondent used Wil-
son’s disciplinary action logs to support its position during
706 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The findings herein are based upon a composite of the testimony of Union
President/Chief Steward Leumer and Union Business Representative Phillips.
7 Respondent provided the Union with the information it requested relating
solely to the unit employees. There is no contention or allegation that Re-
spondent violated the Act by its delay in furnishing that information.
the preliminary stages of the grievance procedure and before
arbitrators in cases involving employees’ grievances, it had
relied upon unexpurgated logs; those that had not been
whited out and which included the names of all nonexempt
employees who had been disciplined for violating Respond-
ent’s rules. It whited out the log furnished to the arbitrator
in Pena’s case because this is what it had done to the log
it had furnished the Union during the preliminary stages of
the processing of the grievance.
The record reveals that the Union’s reasons for requesting
Respondent to furnish it with its records showing the dis-
cipline or lack of discipline imposed on all of the facility’s
employees, not just those represented by the Union, for vio-
lating plant rule A.8, are as follows:6 the Union understood
that Respondent’s plant rules applied equally to all of the
personnel employed at the Sunnyvale facility; the Union be-
lieved that employees, including exempt employees, had
been engaged in conduct which literally fell within the lan-
guage of plant rule A.8, but unlike Pena had not been dis-
charged for their conduct; if the requested information
showed Pena was treated no differently than other similar
violators of rule A.8, then the Union might decide not to
press Pena’s grievance to arbitration; but, if the requested in-
formation demonstrated Pena was the victim of disparate
treatment, the Union intended to use that information to sup-
port Pena’s grievance during the initial stages of the griev-
ance procedure and, if Respondent continued to deny the
grievance, rely upon this information in presenting the griev-
ance to an arbitrator.
Finally, the record shows that the Union went ahead with
the arbitration instead of asking that it be postponed pending
the outcome of this proceeding, because Pena, who, as a re-
sult of his discharge, had been unemployed for several
months, was undergoing severe financial hardship.
B. Discussion
Rudy Pena, an employee employed at Respondent’s
Sunnyvale facility in the bargaining unit represented by the
Union, was discharged on or about March 29 for allegedly
engaging in disorderly conduct, in violation of plant rule A.8.
On April 4 the Union filed a grievance on his behalf pursu-
ant to the grievance provisions of the collective-bargaining
agreement between the Union and Respondent. The griev-
ance alleged Pena’s discharge was ‘‘unjust,’’ asked for his
reinstatement with backpay, but indicated the Union would
be willing to negotiate a less severe penalty.
On May 23, the Union informed Respondent that in order
to process and evaluate Pena’s grievance it was requesting
that Respondent furnish it with the names of all of the per-
sons employed at the Sunnyvale facility, those not rep-
resented by as well as those represented by the Union, who
violated plant rule A.8, and to furnish the records showing
what, if any, discipline had been imposed upon those persons
for violating rule A.8.
The Union intended to use the above-described informa-
tion in two ways: If it showed Pena was treated no dif-
ferently than other persons who violated rule A.8, then the
Union would consider withdrawing the grievance, but if it
demonstrated Pena was the victim of disparate treatment, the
Union intended to use this information to support his griev-
ance during the initial stages of the grievance procedure and,
if Respondent continued to deny the grievance, rely upon the
information in presenting the grievance to an arbitrator.
On August 15, by its letter of August 13, Respondent fur-
nished the Union with its records which showed the names
of the employees who violated rule A.8, described how they
had violated the rule, and described the type of discipline im-
posed upon them for violating the rule. This information,
however, was limited to only the employees who were rep-
resented by the Union or by IAM Local No. 322. Respondent
failed to furnish, as requested by the Union, the names and
disciplinary records of all of the other rule A.8 violators who
were not represented by the Union. More specifically, Re-
spondent refused to furnish the Union with the names of the
exempt employees (supervisors, managers, administrators,
and professional employees), and with the names of the non-
exempt employees not represented by the Union or IAM
Local No. 322, who had violated plant rule A.8, and the
records showing the discipline imposed by Respondent upon
them for violating that rule. Respondent informed the Union
that it had not furnished the Union with this information be-
cause Respondent was not required to do so and did not in-
tend to do so.
Counsel for the General Counsel contends Respondent vio-
lated Section 8(a)(5) and (1) of the Act by refusing to furnish
the Union with the names of the above-described nonunit
employees who violated plant rule A.8 and by refusing to
furnish the Union with its records showing the discipline im-
posed upon those employees for having violated rule A.8.
Respondent in its posthearing brief argues that its admitted
refusal to furnish the aforesaid information did not violate
the Act, for three different reasons: (1) ‘‘The Union failed
to meet ¢its burden to affirmatively demonstrate the probable
or potential relevance of information concerning non-unit
employees’’; (2) ‘‘The Union waived its right to the re-
quested information pursuant to Section VIII, paragraph
E3(a) of the collective-bargaining agreement;’’ and (3) ‘‘The
absence of an outstanding grievance renders the instant Com-
plaint moot.’’ For the reasons stated below, I reject Respond-
ent’s arguments and agree with the General Counsel that Re-
spondent violated Section 8(a)(5) and (1) of the Act, when
it refused to supply the Union with the disputed nonunit em-
ployee information herein.
II.
The requested information which Respondent has refused
to furnish to the Union deals with individuals outside of the
bargaining unit and, therefore the General Counsel has the
burden of demonstrating the information’s relevance.7 Pfizer,
Inc., 268 NLRB 916, 918 (1984), enfd. 763 F.2d 887 (7th
Cir. 1985), and Postal Service (Main Post Office), 289
NLRB 942 (1988), enfd. 888 F.2d 1568 (11th Cir. 1989).
The standard for determining the relevance of requested in-
formation is a liberal discovery type standard that merely re-
quires information to have some bearing on the issue be-
tween the parties. Pfizer, Inc., supra at 918. Information of
even probable or potential relevance to a union’s duties must
707WESTINGHOUSE ELECTRIC CORP.
8 I note in its posthearing brief ‘‘Respondent concedes that the Union may
be entitled to disciplinary records maintained by [Wilson].’’
9 I note Respondent did not demonstrate or contend that it did not possess
that part of the requested information herein which dealt with the exempt em-
ployees. I also note that Union Relations Manager Wilson offered no excuse
for his failure to transmit this portion of the Union’s information request to
the appropriate management official. The fact that Wilson may not have
known the name of this person does not excuse his failure to transmit the
Union’s information request to the person who maintained the disciplinary
records concerning the exempt employees. It is apparent, from the whole
record, that it was only because Wilson believed the Union was not entitled
to the information concerning Respondent’s exempt employees, that he chose
not to transmit its request for this information to the appropriate company offi-
cial.
be disclosed. Conrock Co., 263 NLRB 1293, 1294 (1982),
enfd. without opinion 735 F.2d 1371(T) (9th Cir. 1984).
In the instant case, to enable itself to intelligently and
meaningfully evaluate and process employee Pena’s griev-
ance, protesting his discharge for allegedly violating plant
rule A.8, the Union requested information from Respondent
about the way in which Respondent disciplined nonunit em-
ployees, as well as unit employees, who engaged in conduct
which violated plant rule A.8. This information, even though
it concerned nonunit employees, was relevant to Pena’s
grievance under a discovery standard, because Respondent’s
plant rules, including rule A.8, apply equally to nonunit and
unit personnel. In view of this, while Respondent may have
been able to persuade an arbitrator that it had good reason
for treating the two groups dissimilarly, the requested infor-
mation has at least prima facie relevance to the Union’s con-
tention that Pena was the subject of disparate or unduly harsh
treatment.
That the General Counsel has established the potential or
probable relevance of the nonunit information requested by
the Union, accords with the case law. In North Germany
Area Council v. FLRA, 805 F.2d 1044 (D.C. Cir. 1986), the
union sought, in the context of an employee’s grievance,
documents relating to discipline of employees and super-
visory personnel for violations of the same rule anytime dur-
ing the previous 3 years. The Federal Labor Relations Au-
thority (FLRA) ordered the employer to turn over the infor-
mation relating to employees but not supervisors. On the
union’s appeal, the Circuit Court of Appeals for the District
of Columbia remanded the case to the agency. Drawing on
NLRB precedents, the court held that the requested informa-
tion appeared to satisfy the liberal standard for assessing rel-
evance (id. at 1048) and stated, ‘‘we cannot comfortably con-
clude that teachers and their supervisors should be subject to
different disciplinary standards for offenses involving dishon-
esty just because they perform different duties.’’ Id. at 1049.
On remand, the FLRA reversed its position and directed the
employer to furnish the information. Department of Defense
Dependents Schools, 28 FLRA 202 (1987). See also Pfizer,
Inc., 268 NLRB 916 (1984), enfd. 763 F.2d 887 (7th Cir.
1985), and Postal Service (Main Post Office), supra, and
Postal Service, 301 NLRB 709 (1991), where the Board,
with court approval, held that the unions were entitled to in-
formation, in the context of employees’ grievances, concern-
ing the employer’s responses to similar rule infractions by
nonunit employees.
In addition, as the Board stated in Postal Service (Main
Post Office), supra at 943, and Pfizer, Inc., supra at 919, the
information concerning nonunit employees sought here is the
kind arbitrators regularly consider in deciding whether unit
employees have been disciplined for just cause. See also
North Germany Area Council v. FLRA, 805 F.2d at 1048;
Salt River Valley Water Users/Assn. v. NLRB, 769 F.2d 640,
642–643 (9th Cir. 1985); Postal Service, 301 NLRB 709,
711 (1991); and, Elkouri and Elkouri, How Arbitration
Works 257, 643–644 (3d ed. 1973) .
It is for the reasons set forth by the Board and courts in
the above-cited cases, that it is clear Respondent’s records
relating to nonunit employees’ discipline or nondiscipline for
violating rule A.8 are germane to the issue of whether the
Respondent, in discharging Pena for violating that rule, treat-
ed like cases in a like manner, or whether there has been dis-
parate treatment. I therefore find there was a probability that
this information would be of use to the Union in deciding
whether to proceed to arbitration, or in the arbitration pro-
ceeding itself. This conclusion is especially warranted with
respect to Respondent’s refusal to furnish that part of the re-
quested information relating to the nonunit employees classi-
fied as nonexempt employees, inasmuch as Union Relations
Manager Wilson, the management official who decided to
discharge Pena for violating rule A.8, testified that in making
this decision he considered Respondent’s past treatment of
all of its nonexempt employees, including the nonunit/- non-
exempt employees, who had been previously disciplined for
violating that rule.8 Thus, if the requested information re-
veals that some of the nonexempt/nonunit employees were
not disciplined for engaging in conduct similar to Pena’s or
were treated more leniently by Wilson for engaging in such
conduct, it would have provided the Union with the basis to
argue that Pena’s punishment was too severe.
I have considered that Union Relations Manager Wilson is
not responsible for administering the plant rules, insofar as
they apply to the Company’s exempt employees, and that in
deciding to discharge Pena, did not consider the way in
which exempt employees had been disciplined for violating
rule A.8. This, however, does not constitute a defense to Re-
spondent’s refusal to furnish the Union with the names of the
exempt employees who violated rule A.8 and with the record
showing how those individuals where disciplined for violat-
ing that rule.9 The fact that different management officials
administer the plant rules as they apply to exempt and non-
exempt employees does not detract from the undisputed fact
that the rules equally apply to both groups of employees. In
view of this, the fact that someone other than Wilson admin-
isters rule A.8 for the exempt employees does not warrant
the conclusion that the disciplinary records of the exempt
employees who violated rule A.8 are not germane to Pena’s
grievance. Rather, this circumstance only goes to the weight
that the information concerning exempt employees’ discipline
would be given by an arbitrator, if submitted by the Union
as evidence in support of Pena’s grievance.
I recognize that when the requested information concerns
nonunit employees, to satisfy the burden of showing rel-
evance, the requesting party must offer more than mere sus-
picion for it to be entitled to the requested information. Sher-
aton Hartford Hotel, 289 NLRB 463 (1989), citing Southern
Nevada Builders Assn., 274 NLRB 350, 351 (1985). See also
Bohemia, Inc., 272 NLRB 1128, 1129 (1984). Rather, the
duty to disclose information concerning nonunit employees
will be triggered by a showing that the requesting party has
a reasonable basis for requesting the information. NLRB v.
Leonard B. Hebert Jr. & Co., 696 F.2d 1120, 1123 (5th Cir.
708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Respondent’s waiver argument is predicated entirely upon the express lan-
guage contained in par. E3(a) of sec. 8 of the parties’ contract.
1983); Blue Diamond Co., 295 NLRB 1007 (1989). What
constitutes a reasonable basis for further investigation de-
pends on the particular facts of each case; however, it is
clear that a union is not required to assemble a prima facie
case. See San Diego Newspaper Guild Local 95 v. NLRB,
548 F.2d 863, 867–868 (9th Cir. 1977); Curtiss-Wright Corp.
v. NLRB, 347 F.2d 61, 67 (3d Cir. 1965). To the contrary,
a union need garner only sufficient evidence to make its in-
formation request ‘‘‘reasonably calculated to lead to the dis-
covery of admissible evidence.’’’ NLRB v. Associated Gen-
eral Contractors of California, 633 F.2d 766, 771 fn. 6 (9th
Cir. 1980). See also NLRB v. Acme Industrial Co., 385 U.S.
432, 433 (1967).
Here, the Union’s knowledge that Respondent’s plant rules
equally applied to all of Respondent’s employees—
nonunit/nonexempt and nonunit/exempt as well as unit em-
ployees—gave the Union a reasonable basis for believing
that the disciplinary records of all of the Company’s nonunit
employees would be of use to the Union in deciding whether
to proceed to arbitration on Pena’s grievance or in the arbi-
tration process itself. Since rule A.8 equally applied to both
unit and nonunit employees, this fact was reasonably cal-
culated to lead the Union to believe that its information re-
quest insofar as it related to nonunit employees would lead
to the discovery of evidence which would have some bearing
on Pena’s grievance, namely, the manner in which Respond-
ent had applied the rule to other personnel (nonunit as well
as unit) who were expected to obey the rule, but like Pena
had violated it. In view of this, the fact that the Union only
had the names of three nonunit employees (Supervisor Diaz
and employees Allison and Atters) who supposedly had en-
gaged in conduct violative of rule A.8, did not preclude the
Union from making a blanket request for the disciplinary
records of all nonunit employees who in the past violated
rule A.8.
Based upon the foregoing, I find Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by refusing to furnish the
Union with the names of the nonunit employees employed at
its Sunnyvale, California facility who violated rule A.8 and
by failing and refusing to furnish the Union with its records
showing what, if any, discipline those nonunit employees re-
ceived for violating the rule.
III.
Paragraph E3(a) of section 8 of the parties’ collective-bar-
gaining agreement, as described in detail supra, expressly
prohibits an arbitrator from issuing any subpoena or other
form of legal process or award to compel Respondent to
produce evidence considered by Respondent to be either con-
fidential or not relevant or material to the grievance proceed-
ing before the arbitrator. Respondent contends that by this
provision the Union waived its right under the Act to re-
quest, in connection with the processing of Pena’s grievance,
that Respondent provide it with the requested nonunit infor-
mation in dispute herein, inasmuch as Respondent considered
this information was not relevant or material to Pena’s griev-
ance.10 This contention is without merit.
As Respondent recognizes, a union may contractually re-
linquish a statutory bargaining right if the relinquishment is
expressed in clear and unmistakable terms. Metropolitan Edi-
son Co. v. NLRB, 460 U.S. 693 (1983); Timken Roller Bear-
ing Co., 138 NLRB 15, 16 (1962). In Procter & Gamble
Mfg. Co. v. NLRB, 603 F.2d 1310, 1318 (8th Cir. 1979),
quoted with approval in Clinchfield Coal Co., 275 NLRB
1384 (1985), the court stated that ‘‘for there to be a waiver
of a right to information, the language used must be clear
and unmistakable. Likewise, there must be a conscious relin-
quishment by the Union, clearly intended and expressed to
give up the right.’’ I find that paragraph E3(a) of section 8
of the parties’ collective-bargaining agreement does not meet
this standard.
Paragraph E3(a) of section 8 of the parties’ contract does
not, as Respondent would have me find, state that if Re-
spondent believes information requested by the Union, in
connection with a contractual grievance, is confidential, irrel-
evant or immaterial, that Respondent is not obliged to furnish
this information to the Union. Rather, the plain and unambig-
uous language of this contractual provision states that if Re-
spondent believes that information requested by the Union in
connection with a contractual grievance is confidential, irrel-
evant or immaterial, an arbitrator cannot compel Respondent
to furnish this information to the Union. By agreeing that an
arbitrator could not compel Respondent to furnish such infor-
mation, the Union obviously did not also agree to relinquish
its right to all information which Respondent believed was
confidential, irrelevant or immaterial. The Union, by virtue
of paragraph E3(a) of section 8 of its contract with Respond-
ent, only relinquished the right to request an arbitrator to
compel Respondent to furnish the Union with information
which Respondent believed fell into those categories. The
Union, by virtue of the contract, did not clearly and unmis-
takably waive its statutory right to request such information.
Based upon my review of the parties’ collective-bargaining
agreement, for the above reasons, I am unable to find it es-
tablishes a clear and unmistakable waiver by the Union of
its statutory right to request from the Respondent the dis-
puted nonunit information herein.
IV.
Also lacking in merit is Respondent’s contention that the
issuance of the arbitrator’s opinion concerning Pena’s griev-
ance has rendered moot the unfair labor practice issue posed
by the complaint. The issue framed by the complaint has
nothing whatsoever to do with the merits of Pena’s griev-
ance. The complaint’s allegations do not require that the
Board pass on the merits of Pena’s grievance. The issue
posed by the complaint is not whether Pena was properly
discharged, but whether Respondent failed to fulfill its statu-
tory bargaining obligation by failing to provide upon request
information relevant to the Union’s proper performance of its
duties under the Act. NLRB v. Acme Industrial Co., 385 U.S.
432, 437 (1967).
Since I have found supra, that the General Counsel has
proven the allegations of the complaint, the General Counsel
will, at the very least, be entitled to an order forbidding the
resumption of the unfair labor practices found, inasmuch as
there is no evidence that Respondent may not be expected
to engage in similar misconduct in the future. Quite the op-
posite, it is reasonable to assume that in the future when, in
connection with a unit employee’s grievance over being dis-
charged for violating a plant rule, the Union asks for the dis-
709WESTINGHOUSE ELECTRIC CORP.
11 Compare this case with Pfizer, Inc., 268 NLRB 916 (1984), and Chesa-
peake & Potomac Telephone Co., 259 NLRB 225 (1981), where, at the
union’s request, the arbitration proceeding was held in abeyance pending the
outcome of a proceeding before the Board regarding the legality of the em-
ployer’s refusal to furnish the union with information it needed to process the
grievance before the arbitrator.
12 It was at the court’s request that the Board in C-B Buick dealt with the
issue involved herein and apparently did so in a supplemental decision which
issued on November 15, 1973. See C-B Buick v. NLRB, 596 F.2d at 1090.
I was unable to locate the supplemental decision in the Board’s published re-
ports, so have assumed it was unpublished.
ciplinary records of the nonunit employees who have vio-
lated that rule, Respondent, as was the case here, will refuse
to furnish the Union with the requested information, even
though the nonunit employees are expected to obey its plant
rules. In other words, an important aspect of the remedial
order in this case is the requirement that Respondent refrain
from following similar nondisclosure practices concerning
relevant information in connection with future grievances
filed under the parties’ contractual grievance procedure. See
C-B Buick, Inc. v. NLRB, 506 F.2d 1086, 1092–1093 (3d Cir.
1974) (rejecting mootness defense court stated, ‘‘we regard
[the Respondent’s] proscribed conduct as being capable of
repetition in some relevant context with the Union’’). In
short, this is not a case where the issues presented are no
longer live or where the parties lack a legally cognizable in-
terest in the outcome. Rather, here the Respondent has failed
to justify its refusal to supply upon request information rel-
evant to the Union’s performance of its statutory duties, and
has persisted in its refusal to supply such information, thus
no mootness defense exists.
CONCLUSION OF LAW
By refusing on and after August 13, 1990, to bargain with
the Union by refusing upon request to furnish the Union with
the names of the nonunit employees who violated plant rule
A.8 and the record of their discipline for having violated the
rule, the Respondent engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(5) and (1)
of the Act.
THE REMEDY
Having found that the Respondent engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist and that it take certain affirmative action necessary to
effectuate the policies of the Act.
I have not, as part of the recommended remedy, required
Respondent to furnish, on request, the information concern-
ing the nonunit employees which on May 13 the Union re-
quested Respondent to provide in connection with the
Union’s processing of Pena’s grievance, and which Respond-
ent refused to furnish, in violation of Section 8(a)(5) and (1)
of the Act.
It would be inappropriate to order Respondent to furnish
that information to the Union because the information has no
current relevancy for the sole purpose for which the Union
sought the information, namely, to process Pena’s grievance.
As I have noted supra, rather than have the arbitrator post-
pone or delay deciding Pena’s grievance until this case was
decided, the Union chose to litigate Pena’s grievance before
the arbitrator on September 611 and the arbitrator in January
1991 issued his opinion denying the grievance. In view of
this, the only possible relevance for the information dealing
with nonunit employees which Respondent unlawfully re-
fused to furnish to the Union, in connection with Pena’s
grievance, would be its use to the Union in requesting the
arbitrator to reopen the arbitration proceeding, because of
newly discovered evidence. However, such evidence is clear-
ly not newly discovered inasmuch as the Union knew of its
existence at the time of the arbitration, but chose to proceed
with the arbitration. In any event, even if the arbitrator chose
to regard the Union’s evidence as newly discovered, the arbi-
trator would lack the authority to reopen the hearing because
the law is settled that once an arbitrator issues an opinion or
an award the arbitrator’s jurisdiction is at an end and the ar-
bitrator has no power to reopen the hearing based on newly
discovered evidence. See generally, Brand, Labor Arbitra-
tion, The Strategy of Persuasion 219–221 (PLI, October
1987); Hill & Sinicropi, Evidence in Arbitration 117–118
(BNA, 1980). In view of the absolute certainty that, as a
matter of law, the arbitrator who decided Pena’s grievance
has no power to reopen the hearing in that case, I have con-
cluded that the information which Respondent unlawfully re-
fused to furnish to the Union herein has no possible current
relevancy in connection with the processing of Pena’s griev-
ance by the Union, and for this reason I have not required
Respondent, on request, to provide that information to the
Union. See C-B Buick, Inc. v. NLRB, 506 F.2d 1086, 1093–
1096 (3d Cir. 1974).
I realize I am required to follow the Board’s view of the
law, rather than a court’s, however, I believe that my opinion
is not inconsistent with the Board’s decision in C-B Buick.12
In C-B Buick, the Board, with court approval, held that the
employer failed to bargain in good faith in violation of Sec-
tion 8(a)(5) and (1) of the Act when in 1972, during contract
negotiations with a union for a new collective-bargaining
contract, it refused the union’s request for 1971–1972 finan-
cial data after having alleged it could not afford to accede
to the union’s economic demands. However, the court, in
disagreement with the Board, concluded that to remedy this
unfair labor practice the employer was not required to furnish
the 1971–1972 financial information to the union where the
union and employer thereafter, in 1973, signed a 3-year col-
lective-bargaining contract, and where there was no showing
that the information requested during the contract negotia-
tions was relevant or could be of use to the union in carrying
out its statutory responsibilities after the execution of the
new contract. In so concluding the court rejected the Board’s
argument that if the employer’s 1971–1972 financial records
indicated that it could have afforded higher labor costs, the
union could presently modify the existing contract’s wage or
benefit provisions by an action under Section 301 of the Act.
C-B Buick, Inc. v. NLRB, supra at 1093–1094.
In the instant case, as I have found supra, the only pos-
sible relevance for the information dealing with the nonunit
employees, which Respondent unlawfully refused to furnish
the Union in connection with Pena’s grievance, would be its
use to the Union in requesting the arbitrator to reopen the
record in the arbitration proceeding based upon the discovery
of new evidence. But, as I have also found supra, it is certain
that the arbitrator would not reopen the arbitration hearing
because the law is settled that the arbitrator has no authority
to reopen the arbitration proceeding in Pena’s case, whereas
in C-B Buick the Board apparently concluded that it was un-
710 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 If I believed there was any uncertainty concerning the authority of the
arbitrator to reopen the hearing concerning Pena’s grievance, I would require
Respondent to furnish the Union with the information it has unlawfully refused
to furnish herein, inasmuch as in remedying Respondent’s unfair labor prac-
tices any uncertainty must be resolved against Respondent because Respond-
ent’s unlawful refusal to furnish the information caused the uncertainty. See
generally Kawasaki Motors v. NLRB, 850 F.2d 524, 527 (9th Cir. 1988);
NLRB v. Madison Courier, Inc., 472 F.2d 1307, 1321 (D.C. Cir. 1972); and
NLRB v. Miami Coca-Cola Bottling Co., 360 F.2d 569, 572–573 (5th Cir.
1966).
14 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 objec-
tions to them shall be deemed waived for all purposes.
15 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
certain whether or not the Union would succeed in a suit
under Section 301 of the Act.13
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended14
ORDER
The Respondent, Westinghouse Electric Corporation,
Sunnyvale, California, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain collectively with the Union by re-
fusing to furnish it with information that it requests which
is relevant and reasonably necessary to the processing and
evaluation of grievances and preparing them for arbitration.
(b) In any like or related manner engaging in conduct in
derogation of its statutory duty to bargain in good faith with
the Union, and in any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) In connection with the Union’s processing and evalua-
tion of employees’ grievances protesting the employees’ dis-
cipline for violating a plant rule or regulation, which all per-
sons employed at its Sunnyvale facility are expected to obey,
furnish to the Union, upon request, the names of all individ-
uals employed at the facility (exempt and nonexempt em-
ployees) who violated the rule or regulation in question and
the disciplinary records showing the discipline imposed upon
them for violating the rule.
(b) Post at its Sunnyvale, California facility copies of the
attached notice marked ‘‘Appendix.’’15 Copies of the notice,
on forms provided by the Regional Director for Region 32,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt 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, de-
faced, or covered by any other material.
(c) Sign and return to the Regional Director sufficient cop-
ies of the attached notice marked ‘‘Appendix’’ for posting by
the Union, if willing, in conspicuous places where notices to
employees and members are customarily posted.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with District
Lodge No. 93 and Local Lodge No. 565, affiliated with the
International Association of Machinists and Aerospace Work-
ers, AFL–CIO by refusing to furnish them with information
upon request which is relevant and reasonably necessary to
the processing and evaluation of grievances and preparing
them for arbitration.
WE WILL NOT in any like or related manner engage in
conduct in derogation of our statutory duty to bargain in
good faith with the District Lodge No. 93 and Local Lodge
No. 565, and in any like or related manner interfere with, re-
strain, or coerce you in the exercise of your rights guaranteed
by Section 7 of the National Labor Relations Act.
WE WILL, in connection with the above-named unions
processing and evaluation of employees’ grievances protest-
ing employees’ discipline for violating a plant rule or regula-
tion, which all persons employed at this facility are expected
to obey, furnish to the above-named unions, upon request,
the names of all individuals employed at this facility (exempt
and nonexempt employees) who violated the rule or regula-
tion in question and our disciplinary records showing the dis-
cipline imposed upon those individuals for violating the rule
or regulation.
WESTINGHOUSE ELECTRIC CORPORATION