Columbus Products Company

220 COLUMBUS PRODUCTS COMPANY Columbus Products Company, a Division of White- ORDER Westinghouse Corporation and International Pursuant to Section 10(c) of the National labor Union of Electrical, Radio and Machine Work- Relations Act, as amended, the National Labor Re- ers, AFL-CIO-CLC and its Local 746. Case 9_ Relations Act, as amended, the National Labor Re- CA-13258 lations Board adopts as its Order the recommended Order of the Administrative Law Judge and November 12, 1981 hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION AND ORDER MEMBER JENKINS, dissenting: BY MEMBERS FANNING, JENKINS, AND The Administrative Law Judge found that Re- ZIMMERMAN spondent, Columbus Products Company, did not On June 30, 1980, Administrative Law Judge violate Section 8(a)(5) and (1) of the Act by refus- James T. Youngblood issued the attached Decision ing to furnish the Union with certain information in this proceeding. Thereafter, counsel for the Gen- which the Union requested to process grievances. I eral Counsel filed exceptions and a supporting disagree and would reverse his findings. suibrief. n The essential facts are not in dispute. On November 16, 1978, 2 line two of the refrig- Pursuant to the provisions of Section 3(b) of the On November 16, 1978, line two of the refrig- eration assembly in Respondent's appliance manu- National Labor Relations Act, as amended, the Na- facturing plant malfunctioned. Production on line tional Labor Relations Board has delegated its au- two halted and those employees who worked on thority in this proceeding to a three-member panel. that line were temporarily unable to work. The The Board has considered the record and the at- regular lunch hour of the line two employees was tached Decision in light of the exceptions and brief from 11 until 11:30 a.m. Due to the malfunction, and has decided to affirm the rulings, findings,' and however, Respondent advanced the lunch hour by conclusions of the Administrative Law Judge and a half hour, that is, from 10:30 until 11 a.m. This to adopt his recommended Order. change was resisted by the employees and the Union. Respondent's supervisors observed two union Our dissenting colleague correctly states the rule requiring an erm- stewards, Tom Fultz and Don Parkinson, who ployer to provide information which is of probable or potential relevance worked on line two, passing among the employees to the proper performance of the duties of a collective-bargaining repreo and speaking with each employee individually. sentative. However, the rule is not per se, and in each case the Board must determine whether the requested information is relevant, and if rele- Thereafter, most employees refused to change their vant, whether it is sufficiently important or needed to invoke a statutory lunch hours as Respondent's supervisors requested. obligation of the other party to produce it. Tool and Die Makers' Lodge No. 78. IAM, AFL-CIO (Square D Company, Milwaukee Plano, 224 NLRB 111 (1976). volunteered to their supervisors that Parkinson and We find, in agreement with the Administrative Law Judge, that the in- Fultz had told them not to change their lunch formation here requested is not of such significance or necessity to war- rant a Rinding that the refusal to provide it violates the Act. As empha- hour. As a result of their refusal to follow supervi- sized by the Administrative Law Judge, Respondent informed the Union sory instructions, the employees who refused to of the substance of the employees' statements pertaining to the conduct take an earlier lunch break were suspended for a which is the subject of the grievance; Respondent assured the Union that it would not call as witnesses any of the employees who gave statements day and a half. Respondent suspended Parkinson or make any reference to their statements in the grievance proceeding; and Fultz for 5 days each on grounds that they fo- and the Union did in fact interview every employee involved in the inci- dent of alleged misconduct. In these circumstances, all relevant and mented insubordination among the hourly employ- needed information has been rendered and we fail to see how the furnish- ees. ing of the names of employees can enable the Union to represent employ- Pursuant to the collective-bargaining agreement ees more effectively. See American Standard. Inc., 203 NLRB 1132 (1973). In this connection, the dissent's reliance on Transport of New then in effect between the parties,3 the Union filed Jersey, 233 NLRB 694 (1977), is misplaced. There, the subject of the grievances on behalf of the two stewards. During grievance was the determination that a bus driver was at fault for a traf- the grievance procedure the Union requested the fic accident. The union requested the names and addresses of passenger witnesses to the accident, even though the employer stated that its deter- names of employees who had volunteered informa- mination was based solely on the driver's, version and the physical cir- tion about Parkinson and Fultz. Respondent re- cumstances. Clearly, the witnesses version of the accident would aid the union in evaluating the physical evidence and the driver's testimony. Fur- fused to divulge the employees names, but it gave ther, the requested information was necessary because the union had no the Union the substance of their comments to the other way of knowing who the passengers were and was unable to inter- supervisors. On December II, the Union also re- view them without securing their names from the employer. None of these considerations are present in the instant case. The Union knows which employees were involved in the incident and has already conduct- 2 All dates herein are in late 1978 or early 1979, unless otherwise indi- ed interviews with them. Receiving the names of employees who gave cated. statements to Respondent, therefore, adds nothing to the Union's ability ' The collective-bargaining agreement was effective from October 18, to evaluate the grievance or intelligently pursue it. 1976, through March 15, 1980. 259 NLRB No. 29 COLUMBUS PRODUCTS COMPANY 221 quested the names of the employees who were in- The Board and the courts have applied a liberal structed or encouraged by Parkinson and Fultz to discovery standard in determining whether a bar- disobey orders from Respondent's supervisors. Re- gaining representative is entitled to requested infor- spondent refused to furnish the information on mation.5 Thus, the Board has held that an employ- grounds that it was unnecessary. Respondent also er has an obligation, as part of its duty to bargain asserted, as an additional ground for denying both in good faith, to provide information needed by a requests, that the Union would harass and retaliate bargaining representative for the proper perform- against the employees should their names be re- ance of its duties. It has further held that while an vealed.4 employer has no obligation to provide information On January 4, Respondent, by letter, informed which is plainly irrelevant to any dispute concern- the Union that it did not intend to call any of the ing the bargaining unit, it must supply information employees as witnesses during the grievance and which is of even probable or potential relevance. 6 arbitration procedure, but that it would rely solely The rationale underlying this liberal discovery on the testimony of its supervisory personnel. The policy is to enable the bargaining agent to have Union interviewed every employee on line two and sufficient information to evaluate the merits of an obtained from them statements that they had not employee's claim.7 received encouragement to refuse to change their The information here requested by the Union lunch hour from either Parkinson or Fultz. meets the Board's standard of necessity and rel- The Administrative Law Judge observed that evance. The Union requested two things in further- there was a duty imposed on an employer to pro- ance of the grievance, the names of all employees vide the bargaining representative, upon request, who had volunteered information about Parkinson information which is relevant and necessary in and Fultz, and the names of those employees who order that the representative may intelligently ex- were instructed or encouraged by Parkinson and ecute its statutory obligations to the employees Fultz to disobey Respondent's order to take an whom it represents. However, he concluded, with- early lunch hour. Respondent refused to furnish out citing any authority, that the Union was able to any employees' names, but it did give the Union gather all relevant and necessary information it the substance of their comments. The record is un- needed regarding the incident without forcing Re- clear on this point, but presumably the "comments" spondent to disclose the names of the employees in referred to all the statements of those employees question. In so finding, he emphasized that in re- who volunteered information. Respondent has not, sponse to the Union's request for employees' names however, provided the Union the names of those Respondent gave the Union the substance of the employees whom Parkinson and Fultz told not to comments made by those employees who talked take the early lunch. with management after talking with the stewards. In similar circumstances the Board has held that He further noted that, not only did the Union have an employer has a duty to furnish the names of access to all the information it needed, it had in witnesses to an incident for which an employee fact interviewed all the employees involved in the was disciplined, Transport of New Jersey, 233 incident. Finally, the Administrative Law Judge NLRB 694 (1977). In that case a bus operator concluded that, since the Union had access to all grieved the employer's determination that he was information regarding the incident, Respondent at fault in an accident. The union requested names was under no duty to furnish the names of employ- and addresses of passenger witnesses to the acci- ees whom it did not intend to call as witnesses dent. There, as here, the employer contended the merely because the Union claimed relevance. Ac- information was not relevant because its determina- cordingly, he dismissed the 8(a)(5) charges against tion of fault was not based upon any information Respondent. from the witnesses whose identity the union The General Counsel contends that Supreme sought, but instead was grounded solely on the op- Court and Board precedent require a violation erator's version of the accident and the physical finding because Respondent refused the Union's re- circumstances. The Board rejected the employer's quest for information which was necessary and rel- argument, finding that the names of the witnesses evant to enable the Union to fulfill its duty to proc- and the information which might be be obtained ess the grievances and fairly represent the unit em- from them was relevant to the issues raised by the ployees. I find merit in this contention. ' See, e,g., N.L.R.B. v, Acme Industrial Co., 385 US. 432 (1967). Respondent did not offer any direct evidence to support its conten- 6 Los Angeles Chapter. Sheet Metal and Air Conditioning Contractors .Va- tion that the Union would harass the employees were their names to be tional Association. Inc., et al. 246 NLRB 886 (1979). revealed. N.L. R.B. v. Acme Industrial Co., 385 U.S. at 438. 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD grievance and were necessary to enable the union evil the Board sought to prevent in Anheuser- to intelligently process the grievance. Busch-retaliation against employees who gave The same considerations apply here. Clearly the statements-is purely speculative in this case. Al- names of the employees who gave Respondent in- though Respondent contends that the Union will formation about the two union stewards as well as retaliate against these employees if their names are the names of the employees who allegedly were in- revealed, it cites no direct evidence to support its structed by the stewards to disobey orders are rele- assertion. Moreover, Respondent stated that it did vant to the issues raised by the grievance. Further, not intend to call employee witnesses. Hence, there these employees may provide valuable firsthand in- can be no concern that the Union might attempt to formation, which the Union does not now have, force witnesses to change their testimony. I am which could aid the Union in its evaluation of the therefore not persuaded that there is a substantial merits of the grievance or which the Union could basis for Respondent's claimed fears of retaliation employ to rebut Respondent's case. That Respond- and harassment if the names are revealed. ent does not intend to rely on or refer to this infor- Accordingly, I would find, for the foregoing rea- mation during the arbitration hearing does not de- sons, that Respondent's refusal to furnish the Union tract from the importance of this information to the with the information it requested violated Section Union. Nor is the importance of the information di- 8(a)(5) and (I) of the Act. minished by the interviews already conducted by DECISION the Union with all the unit employees. Simply knowing the names of employees who allegedly STATEMENT OF THE CASE either saw the stewards encouraging others to in- JAMES T. YOUNGBLOOD, Administrative Law Judge: subordination or were themselves so encouraged The complaint which issued on January 17, 1979, alleges would give the Union a sense of the strength of that since on or about December 11, 1978, the Interna- Respondent's case and better enable it to evaluate tional Union of Electrical Radio and Machine Workers, the merits of its position and would enable the AFL-CIO-CLC, and its Local 746 (herein the Union), Union to verify such "second-hand" information or requested Columbus Products Company, A Division of White-Westinghouse Corporation (herein Columbus or supplement it, if appropriate. This is particularly so Respondent) to furnish the names of employees who al- where, as here, the employee responses to the legedly were instructed and/or encouraged by employ- Union's inquiries were at odds with the information ees Fultz and Parkinson to disobey orders from Re- the Union received from Respondent to the effect spondent supervisors and since that date Respondent has that employees advised their supervisors that the refused to bargain collectively in good faith with the two stewards had instructed or encouraged them to Union by failing and refusing to supply the Union with disobey the early lunch hour order. It follows then the information requested in violation of Section 8(a)(5) that the names of the employees who volunteered and (1) of the Act. Respondent filed an answer to the this information are both relevant and necessary. complaint admitting the service of the charge, jurisdic- tion of the Board, that Respondent is an employer as de- Providing this information will facilitate the dispo- fined in the Act, and that the Union is a labor organiza- sition of the grievance, which in turn will conserve tion as alleged in the complaint, but denied the commis- the resources of the Board. sion of any unfair labor practices. This matter was heard Respondent nevertheless argues that surrender of before me at Columbus, Ohio, on August 6, 1979. Re- the information to the Union will expose the spondent, the Charging Party, and the General Counsel named employees to retaliation from the Union. In filed post-hearing briefs which have been duly consid- support of this position, it cites Anheuser-Busch, ered. I snc. In that case the Board held that an employer's Upon the entire record, and from my observations of Inc. " In that case the Board held that an employer's the witnesses and their demeanor, and after due consider- refusal to furnish witnesses' statements was not a ation of the briefs filed by the parties, I hereby make the violation of Section 8(a)(5) of the Act because dis- following: closure of the statements could lead to the intimi- dation of employees and the reluctance to give FINDINGS AND CONCLUSIONS statements. The instant case is distinguishable in A. The Facts that the Union is not requesting witnesses' state- ments, thus there is no question of disclosing spe- The facts in this case are not in dispute. Respondent cific information given in confidences9 Further, the and the Union executed a collective-bargaining agree- ment effective from October 18, 1976, to March 15, '237 NLRB 982 (1978). 1980. 9 Indeed, Anheuser-Busch recognized an employer's duty to furnish a union, upon request, the names, rather than the statements of employee 'The appropriate unit as set forth in the complaint and admitted by witnesses to an incident for which an employee was disciplined. 237 the answer covers: NLRB at 948, fn. 5. Continued COLUMBUS PRODUCTS COMPANY 223 On November 16, 1978, mechanical problems arose on visory personnel. Thus, Respondent made it clear that it line two of the refrigeration assembly in Respondent's did not intend to call any of the employees as witnesses plant. As the line was shut down, employees were unable and therefore Respondent had no need for their names. to work and this created a situation in which manage- Additionally, Respondent asserts that the Union inter- ment decided to advance the normal lunch period by viewed all of the employees on line two and obtained one-half hour. Thus, the normal lunch period was from nothing from them with regard to any statements made II until 11:30 a.m. Respondent proposed to advance the to supervisors that the stewards told them not to change lunch period by one-half hour making it from 10:30 to II lunch hours. Respondent argues that because the em- a.m., thereby utilizing some of the downtime on the line. ployees are available to the Union and the Union can This change affected approximately 90 hourly employees call as many witnesses as it deems necessary, it is not rel- on this line. There was resistance by the employees and evant to the Union's case in the grievance procedure for the Union, and most employees refused to change their Respondent to divulge the names of the witnesses that it lunch period as instructed by management supervisors. interrogated concerning the stewards who had informed Two union stewards, Parkinson and Fultz, were regular- them not to take the early lunch hour. ly assigned to work on a portion of line two. They were also affected by the shutdown. On the occasion of the B. Conclusions lunch hour change, management employees allegedly ob- served these two stewards passing among the line two It is well settled that the Act imposes upon an employ- employees and talking to each employee. It appears that er the duty to furnish the Union, upon request, informa- thereafter the hourly employees refused supervisory tion relevant and necessary to enable it to intelligently instructions to take an early lunch. carry out its statutory obligations as the employee's ex- According to management, many of the employees clusive bargaining representative, and, under the stand- volunteered verbally to their supervisors that stewards ard of relevancy as applied by the Board and the courts, Parkinson and Fultz had told them not to change their it is sufficient that the Union's request for information be lunch period. As indicated earlier, many of the hourly supported by showing probable or potential relevance. rated employees refused to change their lunch period as It is important to understand here that the Union did instructed by the supervisors. As a result of this many of not request the substance of the employees' statement re- the hourly employees received a disciplinary suspension lating to the conduct of Parkinson and Fultz. It sought of 1-1/2 days. Because management felt that part of the only the names of employees who allegedly were in- refusal by the employees to change their lunch period structed by Parkinson and Fultz to disobey orders from was the result of the encouragement to insubordination Respondent's supervisors. Here Respondent had in- by stewards Parkinson and Fultz, the stewards were each formed the Union that it was not going to call any of the given a 5-day disciplinary suspension. On December 4, employees who had given statements against the stew- 1978, grievances on their behalf were filed by the Union. ards as witnesses in the grievance and/or arbitration pro- During the course of the grievance procedure the ceeding. It informed the Union that it would rely only Union requested the names of all employees who had upon its own supervisors' testimony. Additionally, Re- volunteered information about Parkinson and Fultz. The spondent informed the Union of the substance of the em- Company refused to furnish these employees' names but ployees' statements pertaining to the conduct of Parkin- did divulge the substance of their comments. On Decem- son and Fultz. Moreover, the Union had in fact inter- ber II 1, the Union requested Respondent to furnish it viewed every employee involved on line two and had with the names of employees who allegedly were in- obtained from them a statement that they had not re- structed or encouraged by employees Fultz and Parkin- ceived any encouragement to insubordination from either son to disobey orders from Respondent's supervisors, steward Parkinson or steward Fultz. contending the information is relevant and necessary to It appears to me that in the instant case the Union was represent the employees in the bargaining unit, including able to gather all the information it needed regarding the the processing of their grievances. As indicated, Re- incident and was in full possession of all relevant and spondent refused to furnish the information contending it necessary information. The Union also had access to all is not necessary and that the Union would retaliate and information it needed to process the grievance through harass the employees. arbitration without forcing Respondent to disclose the During the grievance proceedings, and by letter dated names of witnesses. January 4, 1979, and at the hearing, Respondent made it While I agree that Respondent cannot determine what known to the Union that it did not intend to call any of information it wishes to provide the collective-bargaining the employees as witnesses during the grievance and ar- representative of its employees in its duty to fairly repre- bitration procedure and that whatever testimony would sent these employees, I also agree that Respondent does be put on to establish that the employees had been in- not have to provide the Union with information it does formed by Parkinson and Fultz not to take the early not need to process a grievance through arbitration. lunch hour would be established by Respondent's super- Thus, where the Union has access to all the information regarding the incident involved it is my conclusion that All production employees, all tool room (Tool Department) employ- Respondent is under no duty to furnish the names of wit- ees, and all maintenance employees, including the zone maintenance nesses to the Union merely because it claims relevance. men, but excluding all power house employees, all office and clerical employees, professional employees, guards and all supervisors as de- In the instant case, Respondent's representatives have fined in the Act. disclosed to the Union the substance of the employees' 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statements made pertaining to the conduct of Parkinson CONCLUSIONS OF LAW and Fultz. All relevant information has been tendered. In 1. Respondent is an employer engaged in commerce my opinion it can serve no useful purpose to reveal the within the meaning of the Act. names of persons who not only will not be witnesses but 2. The Union is a labor organization within the mean- will not even be referred to by name in the arbitration ing of Section 2(5) of the Act. proceedings. Additionally, the Union has admitted that it 3. Respondent did not as alleged in the complaint interviewed each person involved in the incident and ob- refuse to bargain collectively with the Union as the col- tained their own information without regard to the lective-bargaining representative of Respondent's em- names of the witnesses which might be called by Re- ployees within the meaning of Section 8(a)(5) and (1) of spondent. the Act. Therefore, it is my view as the Union has access to all On the basis of the foregoing findings and conclusions, of the information it needs to process the grievance and upon the entire record, and pursuant to Section 10(c) through arbitration it is not incumbent upon Respondent of the Act, I hereby issue the following recommended: to disclose the names of witnesses which it specifically has indicated it does not intend to call in the arbitration proceedings. Therefore, it is my conclusion that the com- The complaint is hereby dismissed in its entirety. plaint herein shall be dismissed in its entirety. Having found that Respondent is not engaged in the violation of 2 In the event no exceptions are filed as provided by Sec. 102.46 of the the Act as alleged in the complaint, I shall recommend Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provdied in that the complaint be dismissed in its entirety. 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.