General Electric Co.

286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Electric Company and International Union of FINDINGS OF FACT AND CONCLUSIONS Electrical, Radio and Machine Workers, AFL-CIO- CLC. Case 1-CA-7970 September 26, 1972 BY MEMBERS FANNING, KENNEDY, AND PENELLO On June 23, 1972, Trial Examiner Eugene George Goslee issued the attached Decision in this proceed- ing. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Trial Examiner's Decision. 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 Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order. I THE BUSINESS OF THE RESPONDENT The Respondent is a New York State corporation and maintains, among others, a plant at Pittsfield, Massachu- setts, where it is engaged in the manufacture and sale of power distribution equipment and related products. In the course and conduct of its business operations at the Pitts- field plant, the Respondent annually purchases and receives materials and sells and distributes products to and from sources situated outside the State of Massachusetts, both in amounts valued in excess of $50,000. The complaint alleges, the answer admits, and I find that the Respondent is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II THE LABOR ORGANIZATIONS INVOLVED The complaint also alleges, the answer admits, and I fend that the International Union of Electrical, Radio and Ma- chine Workers, AFL-CIO-CLC, hereinafter called the Un- ion, and its Local 254 are labor organizations within the meaning of Section 2(5) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that Respondent, General Electric Company, Pittsfield, Massachusetts, its officers, agents, successors, and as- signs, shall take the action set forth in the Trial Examiner's recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE GEORGE GOSLEE, Trial Examiner: This case came on to be heard before me at Pittsfield, Massachusetts, on May 9, 1972, upon a complaint issued by the General Coun- sel of the National Labor Relations Board and an answer filed by General Electric Company, hereinafter called the Respondent.' The issues raised by the pleadings in this pro- ceeding relate to whether or not the Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, by certain acts and conduct hereinafter spec- ified. Briefs have been received from the General Counsel and the Respondent, and have been duly considered. Upon the entire record in this proceeding, and from my observation of the testimony and demeanor of the witness- es, I hereby make the following: III THE APPROPRIATE BARGAINING UNIT AND THE UNION'S MAJORITY STATUS Since 1950, as a result of a Board certification, the Union has been the representative for purposes of collective bar- gaining of certain office and clerical employees employed at the Respondent's Pittsfield plant. At times material to this case the bargaining unit encompassed about 525 employees. The Respondent and the Union are currently signatories to a 3-year bargaining agreement, which provides terms and conditions of employment for the employees in the office and clerical unit. This bargaining agreement, hereinafter referred to as the National Agreement, is also applicable to employees in other than office and clerical classifications who are employed at Pittsfield and other plants operated by the Respondent. In addition, the Respondent and the Union's Local 254 are signatories to a supplemental agree- ment, which pertains to certain heal conditions such as layoffs and recalls, but which is limited in its application to the employees in the office and clerical unit referred to above. As the Respondent's answer admits, I find that at all times material to this case the Union and its Local 254 have been the representative for the purposes of collective bar- gaining of a majority of employees in the following de- scribed unit,2 and have been, and are now, the exclusive representative of all the employees in the unit for the pur- pose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and condi- tions of employment: All office and clerical employees of the Respondent at its Pittsfield Apparatus Department plant, 100 2 The bargaining unit described herein accords with the unit recognized by the parties as appropriate in the national and supplemental agreements, as The complaint in this case is predicated on a charge filed on November determined by the Board in its decision in General Electric Company, 89 22, 1971, and served on the Respondent on the same date NLRB 726, 763 199 NLRB No. 39 GENERAL ELECTRIC COMPANY Woodlawn Avenue, Pittsfield, Massachusetts, includ- ing accounting clerks, billing clerks, general clerks, of- fice machine operators, stenographers and typists, messengers, mail clerks, cost clerks, production clerks, payroll clerks, dispatchers, price and edit clerks, order and followup clerks, shipping clerks, traffic clerks, blueprint machine operators, and test calculators, but excluding executives, commercial and sales employees, chemical department employees , engineers, technical employees in the Engineering and Works Laboratories, rate setters, planning, wage rate, methods, and time- study employees, test engineers, secretaries, confiden- tial payroll clerks, confidential clerical employees, per- sonnel department employees, cost estimators, cost reduction employees, cashiers, nurses, doctors, medical technicians, telephone and teletype employees, tool es- timators, receptionists, works news editors, librarians, commercial artists, quality control employees, all draftsmen, draftsmen apprentices, designers, detailers, tracers and trainees, professional employees, guards, and supervisors as defined in the Act. IV THE UNFAIR LABOR PRACTICES ALLEGED The single issue presented in this proceeding is whether the Respondent violated its duty to bargain collectively with the Union and its Local 224, hereinafter referred to collec- tively as the Union, by failing and refusing to comply with the Union's request for information pertaining to job de- scriptions, compensation and other employment benefits accorded to certain employees in the Respondent's Pitts- field operations. All parties to the proceeding agree that the information sought by the Union concerns employees in classifications excluded from the scope of the office and clerical unit found appropriate above. Accordingly, while it does not deny the Union's request and its continuing refusal to supply some of the information, the Respondent con- tends that data pertinent only to classifications outside the coverage of the unit, exclusions to which the Union agreed, in the original formulation of the unit,3 is neither necessary nor relevant to the Union's obligation to bargain collective- ly and police its contracts. Alternatively, the Respondent argues that what the Union is really seeking is evidentiary material to support a unit clarification or amendment pro- ceeding, and that this purpose is not attended by the requi- site relevance to require the Respondent to turn over data concerning nonunit employees. The record reflects that on July 15,197 1, Daniel Reed, the president of Local 254, directed a letter to the Respondent, and advised as follows: It appears that the Company is eroding the multi-plant bargaining unit at Pittsfield by placing certain employ- 3 It appears from the record in this proceeding and from the Board's representation case Decision reported at 89 NLRB 726, that the scope of the office and clerical unit was arrived at by the consensus of the Union and the Respondent, and that the coverage of the unit was not a matter before the Board for determination. In its argument the Respondent concedes , there- fore, that under current circumstances it is probable that the Union would not agree to omit all of the classifications excluded from the existing unit. The Respondent appears also to concede, moreover, that the unit might assume different proportions, if the issue of the exclusions was before the Board in a contested representation proceeding 287 ees who are doing work performed by represented em- ployees in so-called exempt or ineligible categories. In order to evaluate the situation intelligently and to rep- resent bargaining unit employees effectively, we re- quest you furnish us with the following information: In the letter to the Respondent, Reed then requested the job descriptions, showing the duties, education require- ments, and work experience for 16 job classifications in 3 departments at the Respondent's Pittsfield plant. In addi- tion, for each of the job classifications named, Reed re- quested the Respondent to furnish the salary range, overtime arrangements, regular work hours, vacation and vacation pay arrangements, holiday and holiday pay ar- rangements, sick leave and sick leave pay arrangements, insurance, and pension arrangements, and any reasons re- lied on by the Respondent for its assertions that employees in the classifications listed are considered to be "exempt" or "ineligible." On October 14,197 1, Bertrand Himes, the Respondent's manager for union relations, replied in writing to the Union's request, advising in the initial paragraph that: This letter is in response to your July 15, 1971 request for certain information relative to specific job classifi- cations. As you know we have discussed each of these jobs individually and have answered your questions regarding them. This writing will reflect what we told you orally in those discussions. In further response to the Union's request, Himes ad- visedthat four of the job descriptions sought by the Union per- tained to classifications in the bargaining unit, and the de- scriptions had already been furnished to the Union. As to one of the classifications in this group, however ( Billing Clerk (Grade 5) - DPED), Himes acknowledged that the Union had raised questions about two particular employees, but that both of them were involved in marketing functions and therefore excluded from the bargaining unit. Himes also informed the Union that in 7 of the 16 classifi- cations where the Union requested job descriptions, the jobs no longer existed, or no employees were currently assigned to the classification. Again, however, Himes acknowledged that in five of the seven classifications in this group, the Union had identified specific employees whom it believed performed work within the designated classification, but, in the opinion of the Respondent, these employees were en- gaged in functions outside the scope of the bargaining unit. With respect to the remaining five classifications for which the Union had requested job descriptions, Himes advised that the Respondent considered them to be among the classifications excluded from the unit. In the case of keypunch operators in the ordinance department, Himes informed the Union that of the 10 employees in this classifi- cation, 7 were included in the unit, and 3 were considered by the Respondent as "ineligible" because they perform functions considered within the areas for which the Union was not certified as the bargaining representative. With respect to the Union's request for pay schedules and benefit arrangements, Himes replied that the Union had already been supplied with copies of the nonexempt salaried pay grades and rates, and that the pay grades and rates are the same for both "eligibles" and "ineligibles." As to "ex- empt" salaried employees, Hines advised that because the 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union does not represent such employees, information rela- tive to the exempt salary pay plan and structure would not be provided. He also stated in the letter of October 14, that overtime arrangements for all "nonexempt" employees are the same for "eligibles" and "ineligibles"; that overtime arrangements for "exempt" employees are administered in accordance with applicable law; that regular working hours are substantially the same for all employees; and that bene- fits plans applicable to vacations, holidays, sick pay, insur- ance, and pensions are the same for all salaried employees. As concerns Reed's inquiry about the Respondent's reasons for considering any of the listed classifications as "exempt" or "ineligible," Himes replied that the status of "exempt" is determined by Federal law; and, in the Respondent's view, a status of "nonexempt ineligible" reflects either a situation where the employee works with the Company's confidential information, or a condition where the employee is excluded under the bargaining certification. Reed and the chief shop steward for Local 254, William T. Jones, were the only witnesses who testified in this pro- ceeding. According to the testimony of Reed, as corroborat- ed in part by Jones, through complaints of its members and observations on the job it came to the attention of the Union that the Respondent has been eroding the bargaining unit by transferring employees who perform unit work to so- called "exempt" or "ineligible" categories. Over a period of approximately 1 year, the Union discussed its complaints about the alleged erosion with the Respondent's officials at weekly grievance meetings. With respect to those classifica- tions listed in its July 15 letter, the Union discussed specific employees and requested the Respondent to furnish job descriptions and to agree to a joint review by representatives of the Union and the Respondent of the work and functions performed by the employees assigned to the disputed classi- fications. According to Reed's uncontroverted testimony, the Respondent consistently denied both requests on grounds that the Union does not represent employees in "exempt" or "ineligible" classifications, and the Respon- dent had no obligation to supply the requested information, or to agree to undertake joint job reviews. During the course of their testimony, Reed and Jones cited specific examples of employees who were discussed with the Respondent during the course of the conversations on the contested classifications. Reed also made clear, how- ever, that all of the classifications listed in the Union's letter of July 15 were discussed during the course of weekly griev- ance meetings, and the Respondent's reply letter of October 14 substantially corroborates Reed's testimony. As both Reed and Jones testified, the Union requested the informa- tion relative to the disputed jobs in order to halt the Respondent's erosion of the bargaining unit, and to protect the employees it represents against loss of their jobs. As additional reasons for the requested information, Reed and Jones testified to the Union's needs to police its contract, to weigh and process grievances, and, if necessary, to secure information to support a unit clarification proceeding. By its brief, in addition to the contentions reviewed above, the Respondent asserts that it has already furnished the information requested by the Union and, accordingly, has fulfilled its obligation under the Act. I find to the con- trary, however, that insofar as the record reflects the Re- spondent only met with the Union to discuss the requested information, but in most respects it denied the requests on grounds that the Union was not entitled to data pertaining to employees it does not represent as a part of the bargain- ing unit. As the courts have reminded us: Merely meeting and conferring without a prior ex- change or requested data, where such is relevant, does not facilitate effective collective bargaining and, there- fore, does not meet the requirements of Section 8(a)(l) and (5).4 Alternatively, as set forth in the initial portion of this Decision, the Respondent argues, as the General Counsel and the Union admit, that the data requested by the Union pertains only to employees outside the scope of the existing bargaining unit. This fact alone, however, does not disenti- tle the Union to the requested information, nor does it, without more, justify the Respondent's consistent refusals to supply the data. The information, if shown to be relevant to the Union's statutory duties and obligations, need not be related directly to the employees in the bargaining Unit .5 As more explicity stated by the Third Circuit Court of Appeals in Curtis-Wright, supra: ... wage and related information pertaining to employ- ees in the bargaining unit ispresumptively relevant, for, as such data concerns the core of the employer-employ- ee relationship a union is not required to show the precise relevancy of it, unless effective employer rebut- tal comes forth; as to other requested data, however, such as employer profits and production figures, a un- ion must, by reference to the circumstances of the case, as an initial matter, demonstrate more precisely the relevance of the data it desires. Thus, the standard, relevancy of the data, is the same for all cases, but the manner in which a union can demonstrate that its re- quests conform to the standard shift with the type of information desired.6 Although the Respondent tacitly concedes that an em- ployer is not in all instances immune from furnishing a bargaining agent with information pertaining to employees outside the coverage of the existing unit, it argues, neverthe- less, that the General Counsel has not proved in this pro- ceeding that the Union's requests were attended by the necessary showing of relevancy. Initially, as recounted above, the Respondent argues that the Union's sole reason for requesting the information pertaining to 16 classifica- tions excluded from the bargaining unit, is its desire to broaden the scope of the unit by recourse to a unit clarifica- tion or other representation proceeding under Section 9 of the Act. Whether a union's request for information concern- ing nonbargaining unit employees for the sole purpose of pursuing a representation proceeding is attended by that relevance necessary to satisfy the standards established by the Board and the courts is an issue which I need not reach 'Curtis-Wright Corporation, Wright Aeronautical Division v N.L.R.B., 347 F.2d 61, 68 (C.A. 3); citing Boston Herald-Traveler v N.L.R.B., 223 F.2d 58 (C.A. 1). 5 Hollywood Brands, Inc., 142 NLRB 304, enfd. 324 F.2d 956 (C.A. 5), cert. denied 377 U.S. 923. 6 Curtis-Wright Corporation, suprq 69; citing Boston Herald-Traveler, supra, and International Woodworkers of America v N.L.R.B., 263 F.2d 483 (C.A.D. C.). GENERAL ELECTRIC COMPANY in this proceeding. The record reveals that on the basis of complaints from its members and observations on the job the Union came to believe that the Respondent was eroding the unit by transferring job functions from bargaining unit employees to employees in classifications the Respondent contends are outside the scope of the unit. To halt this practice, and thus protect unit employees against layoffs and assure their contractual rights to bump and progress into other classifications, and for the purpose of weighing and processing grievances arising over this dispute, the Un- ion requested the Respondent to furnish job descriptions and data pertaining to pay and benefit arrangements for the so-called "exempt" or "ineligible" classifications. The Union's purposes were clearly known to the Respondent as a result of the contents of Reed's letter of July 15, as well as by a result of the discussions at the weekly grievance meetings which preceded and followed the Union's written request. Insofar as this record reflects, and from the uncon- tradicted testimony of Reed, the Union's intent to use the requested data to support a unit clarification proceeding was only a minor consideration, clearly subordinate to the Union's desire to use the data to carry out its statutory duty to represent the employees in the unit and to police its contract. Accordingly, the Respondent's assertion that the Union has failed to demonstrate the requisite relevancy is rejected. In its brief the Respondent also contends that the Union's claim of relevancy fails because there is no demon- stration of any past or pending factual situation to support the claim. More particularly, the Respondent argues that unlike Curtis-Wright, supra, there is no genuine proof of any long-standing dispute over the assignment of bargaining unit work; that unlike Acme Industrial Co.,7 there is no proof of pending grievances; that there is no proof of the Union's need to fashion a future contract as in Boston Herald-Traveler, supra, and no proof-that the Respondent contemplated a reduction in the bargaining unit through recourse to a move or the hiring of outside contractors as in Rockwell Standard.8 The Respondent's contention to the contrary, the record in this proceeding reflects that in good faith the Union arrived at the belief that the Respondent was eroding the bargaining unit to the detriment of employees the Union represents. The dispute existed for a period of approximate- ly 1 year, and the Union did attempt to process some griev- ances arising as a result of the dispute. As the standard of relevancy is applied by the Board and the courts, it is not the obligation of the Union to prove that its allegation of contract erosion is absolutely and finally meritorious. It is sufficient that the Union's claim be supported by a showing of "probable" or "potential" relevance. On the whole of the record I am satisfied that the "probable" or "potential" relevance of the data requested by the Union has been demonstrated, and I find and conclude that the Respondent's failure to supply the information is per se a violation of Section 8(a)(5) and (1) of the Act.10 7 N.L.R.B. v. Acme Industrial Co, 385 U.S. 432 8 N L,R.B v. Rockwell Standard Corporation, 410 F.2d 953 (C.A. 6), enfg 166 NLRB 124. 9 N L.R.B. v. Acme Industrial Co., supra. 10 Curtis-Wright Corporation, supra, p. 69. 289 V THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section IV, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI THE REMEDY Having found that the Respondent has engaged in, and is engaging in, unfair labor practices in violation of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action to effecutate the policies of the Act. VII CONCLUSIONS OF LAW 1. The Respondent, General Electric Company, is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. The Union, International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, and its Local 254, are labor organizations within the meaning of Section 2(5) of the Act. 3. At all times material to this case, the International Union of Electrical, Radio and Machine Workers, AFL- CIO-CLC, and its Local 254, have been the representatives for purposes of collective bargaining of a majority of em- ployees in the following described unit, and by virtue of Section 9(a) of the Act have been, and are now the exclusive representatives of all the employees in said unit for the purposes of collective bargaining with respect to rates of pay, wages, hours, and other terms and conditions of em- ployment: All office and clerical employees of the Respon- dent at its Pittsfield Apparatus Department plant, 100 Woodlawn Avenue, Pittsfield, Massachusetts, includ- ing accounting clerks, billing clerks, general clerks, of- fice machine operators, stenographers and typists, messengers, mail clerks, cost clerks, production clerks, payroll clerks, dispatchers, price and edit clerks, order and followup clerks, shipping clerks, traffic clerks, blueprint machine operators, and test calculators, but excluding executives, commercial and sales employees, chemical department employees, engineers, technical employees in the Engineering and Works Laboratories, rate setters, planning, wage rate, methods, and time- study employees, test engineers, secretaries, confiden- tial payroll clerks, confidential clerical employees, per- sonnel department employees, cost estimators, cost reduction employees, cashiers, nurses, doctors, medical technicians, telephone and teletype employees, tool es- timators, receptionists, works news editors, librarians, commercial artists quality control employees, all draftsmen, draftsmen apprentices, designers, detailers, tracers and trainees, professional employees, guards, and supervisors as defined in the Act. 4. By failing and refusing on and after July 15, 1971, to provide the Union and its Local 254 with information 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pertaining to job descriptions, wages, and employment ben- efits, the Respondent has failed and refused to bargain col- lectively with the sole and exclusive bargaining representa- tive of its employees in the aforedescribed unit, and has violated Section 8(a)(5) and (1) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following re- commended: I I (c) Notify the Regional Director for Region 1, in writ- ing, within 20 days from receipt of this Decision what steps have been taken to comply herewith. 13 13 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 1, in writing , within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." ORDER The Respondent, General Electric Company, its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with the Interna- tional Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, and its Local 254, by failing and refusing to furnish the said labor organizations with information they requested on July 15, 1971, pertaining to job descrip- tions, rates of pay, and employment benefits. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights for self-organization, to form, join, or assist labor organizations, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act, or to refrain from any or all such activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, bargain collectively with the Interna- tional Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, and its Local 254, by furnishing to the said labor organizations the information they requested on July 15, 1971, pertaining to job descriptions, rates of pay, and employment benefits. (b) Post at its Pittsfield, Massachusetts, facility, copies of the attached notice marked "Appendix." 12 Copies of said notice on forms provided by the Regional Director for Re- gion 1, after being duly signed by the Respondent's repre- sentative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consec- utive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure 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 bargain collectively with the International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, and its Local 254, by failing and refusing to furnish the said labor organizations with information they have requested pertaining to job de- scriptions, rates of pay, and employment benefits. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights for self-organization, to form, join, or assist labor organizations, to bargain collectively . . through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargain- ing or other mutual aid or protection as guaranteed by Section 7 of the Act, or to refrain from any and all such activities. WE WILL, upon request, bargain collectively with the International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, and its Local254, by furnish- ing to the said labor organizations the information re- quested on July 15, 1971, pertaining to job descriptions, rates of pay, and employment benefits. GENERAL ELECTRIC COMPANY (Employer) Dated By that said notices are not altered, deface, or covered by other (Representative) (Title) material. 11 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 12 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, Seventh Floor, Bulfinch Building, 15 New Chardon Street, Boston, Massachusetts 02114, Telephone 617-223-3300.