Frank Chervan, Inc.

752 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Frank Chervan, Inc. and Amalgamated Clothing and Textile Workers Union, AFL-CIO, CLC. Case 5-CA-17608 28 April. 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND CRACRAFT On 27 October 1986 Administrative Law Judge Claude R. Wolfe issued the attached decision. The Respondent filed exceptions and a supporting brief, I and the General Counsel filed cross-excep- tions 'and a supporting brief. The National Labor Relations Board has delegat- ed 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 briefs and has decided to affirm the judge' s rulings, findings, and conclusions2 and to 'adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Frank Cher- van, Inc., Bedford, Virginia, its officers, agents, successors, and assigns, shall take, the action set forth in the Order. ' The Respondent has requested oral argument. The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. 2 In adopting the judge's conclusion that the Respondent violated Sec. 8(a)(5) of the Act by refusing to provide to the Charging Party the re- quested information, we rely solely on his finding that the information was relevant and necessary to the Charging Party's duties as the collec- tive-bargaining representative in grievance proceedings and that the Union's request was not burdensome. We find it unnecessary to reach the first and second issues noted by the judge; specifically, whether the matter in dispute was settled and, if settled , whether the contractual "conference" requirements were complied with. The parties have agreed on a method for dispute resolution that is embodied in the collective-bar- gaining agreement. We note that the parties have waived contractual time limitations for arbitration. An arbitrator can better decide these issues thereby avoiding any bifurcation of the arbitration hearing, should the Union decide to pursue the grievance after receiving the information. Steven E. Nail, Esq., for the General Counsel. Edward G. Kemp, Esq., for the Respondent. DECISION STATEMENT OF THE CASE CLAUDE R. WOLFE, Administrative Law Judge. This case was litigated before me at Lynchburg, Virginia, on 12 August 1986 pursuant to charges filed by Amalgamat- ed Clothing and Textile Workers Union, AFL-CIO, CLC (the Union) on 4 November 1985 and complaint issued 31 December 1985. The complaint, as amended at hearing, alleges that Frank Chervan, 'Inc. (Respondent) has violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act) by refusing to furnish the Union with information necessary and relevant to its per- formance as employee representative. Respondent denies the commission of an unfair labor practice and contends the grievance was disposed of by binding settlement between the parties during a second step meeting; the information requested is not necessary and relevant; and it would be overly burdensome to supply the information. Respondent agrees in its posttrial brief, and I find, that the refusal-to-furnish information allegation should not be deferred to contractual griev- ance-arbitration procedures, United Technologies Corp., 274 NLRB 504 (1985). On the record before me, and after considering the able posttrial briefs of the parties, I make the following FINDINGS AND CONCLUSIONS 1. JURISDICTION Respondent is engaged in the manufacture and nonre- tail distribution of wooden furniture and related products at its Bedford, Virginia facility. During the 12 months preceding the issuance of the complaint, a representative period, Respondent sold and shipped more than $50,000 worth of its products, goods, and materials directly from its Bedford, Virginia facility to points located outside the State of Virginia. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Relevant Facts There is little dispute about the relevant facts. It is the conclusions to be drawn therefrom that are at issue. Re- spondent and the Union have had an amicable bargaining relationship for some 25 years. The latest collective-bar- gaining agreement between them is effective from 1 April 1985 to 1 April 1988, and contains a grievance pro- cedure reading, in pertinent part, as follows: Section 2. An alleged grievance, in order to re- ceive consideration, must be based on some claimed violation of the rights of employees as established by this Agreement and must be presented within five (5) working days of the occurrence of the act which gives rise thereto. Section 3. Should grievance arise, an earnest effort shall be made to settle them immediately by the following procedure, each enumerated method to be exhausted before resorting to the next enumer- ated method. (a) By conference between the employee in- volved and his immediate supervisor and a Union representative if his presence is requested. The su- 283 NLRB No. 125 FRANK CHERVAN, INC. pervisor shall give a definite answer within twenty- four (24) hours. In the event the agreement is not reached, the aggrieved employee shall then notify the Chairman of the Union Committee, and if the Chairman deems the complaint justified, the em- ployee shall reduce it to writing and it shall be pre- sented to the Company within five (5) working days after the occurrence giving rise to the grievance; it being understood that if the written, grievance is not submitted to the Company within said five (5) day period, the grievance will be barred and will be deemed completely disposed of from the standpoint of the Company, the Union, and the employee in- volved. (b) Within three (3) working days after the writ- ten grievance is submitted, by conference between the employee involved, the Chairman of the Com- mittee, the Plant Superintendent, steward and fore- man. (c) Within ten (10) working days thereafter (or such time as shall be mutually acceptable, by con- ference between the Grievance Committee, a repre- sentative of the International Union, the Plant Man- ager, steward, foreman and the employee involved. (d) If any grievance cannot be settled by, the par- ties as set forth above, it may be referred to arbitra- tion at the request of the Union, and in this event, the Union, within fifteen (15) days after the final de- cision of the Company upon the grievance has been made known, shall notify the Company in writing of its desire to have the matter arbitrated. If the grievance is not appealed to arbitration within such fifteen day period, it shall be deemed to have been satisfactorily settled. If the grievance is appealed to arbitration . . . . [t]he decision of the arbitrator shall be final and binding on both parties... . Respondent assigned Chester Hickman to perform some rush work on Louis XV chair legs on 19 Septem- ber 1985,1 asserting that Hickman was superior to others at performing that work. Gerald Saunders had more se- niority than Hickman, but was placed on laid-off status for 19 September because there was no work available for him. Saunders filed a grievance on 23 September pro- testing that Hickman,was allowed to work in his place even though Hickman had less seniority and skill. Both employees are members of the bargaining unit covered by the collective-bargaining agreement.2 The provision of the agreement relevant to the grievance reads, in per- tinent part, as follows: ARTICLE VII Seniority Section 1. Seniority, on a departmental basis shall prevail at all times. i All dates are 1985. 2 The bargaining unit is All production and maintenance employees, but excluding salaried and clerical employees, guards, watchmen, assistant foremen, fore- men and supervisors. 753 Section 5. (a) In effecting promotions, transfers, demotions, layoffs and recalls, the following, factors will be given full consideration: (i) , Knowledge, skill and efficiency. (ii) Physical fitness for the job. (iii) Length of service. When factors (i) and (ii) are relatively equal, factor (iii) shall govern. The Company shall deter- mine the qualifications under factors (i) and (ii), but any employee who considers himself aggrieved as a result of the Company's determination shall have the right to file a grievance. Robert McKinney, plant superintendent, and Lester Miller, supervisor of Hickman and Saunders, met with Saunders and union steward Charles Cooper on 30 Sep- tember to discuss the grievance. The meeting was re- quested by Cooper. McKinney is the only one of the four who testified. His uncontroverted recitation of what occurred at the meeting is credited. He explained Re- spondent's reasons for selecting Hickman rather than Saunders to do the work. Cooper remarked that he had surmised that was the case and that was what he had told Saunders. Saunders stated that was good enough for him and, as far as he was concerned, that ended the matter. No one mentioned that Vernon Craig, the Union's local president and chairman of the grievance committee was not present. Craig is normally notified by management of conferences to be held at the second step of the grievance procedure.3 He was not notified of the 30 September meeting bythe Company or Charles Cooper. Subsequent to the 30 September meeting, Philip Pope, the Union's international representative, requested a third-step grievance meeting' with Respondent on the written grievance of 23 September that he had received in the mail. When Pope received the grievance, he called Craig and asked if the grievance had been settled. Craig told him there had been no meeting with him at the second step of the grievance procedure and the griev- ance had not been settled. Pope credibly testified that it is the practice to take up the grievance at the third step when there is no second-step meeting because a failure to meet at the second step is construed as an ,automatic denial of the grievance. A meeting with Pope was sched- uled and held on 16 October. The 16 October meeting was attended by Pope, Craig, Cooper, Saunders, Hickman, ' McKinney, Miller, and G. Dennis Snell, Respondent's general manager . The meet- ing opened. Snell said that he did not know why they were meeting because, the Company thought the griev- ance was settled. Pope took the position that it had not been settled, and testified before me that Craig and Saun- ders did not agree at the meeting that it had been settled. According to McKinney, there was no statement from Saunders or Cooper that the grievance had not been set- s There, is no evidence the grievance was first discussed with the em- ployees' immediate supervisor as the first step provides. 754 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tied. Noting that Pope also testified that the company representatives were the only ones at the meeting who said anything about ' the grievance being settled, I con- clude that "Saunders and Cooper neither agreed nor dis- agreed at this meeting that the grievance had been set- tled. In the course of the meeting, Pope requested certain information from Respondent, which he deemed relevant to the grievance. Snell told him to put his request in writing. The following day, 17 October, Pope submitted the following written request to Snell: - A discussion was held on the above mentioned grievance on October 16, 1985. During our discus- sion the Company stated Chester Hickman was more qualified to do the work but did not deny the grievants ability was relatively equal. The-Company claimed it needed Chester to run 'a special order, 15857 Spindle and Wheel. During.our discussion I asked how many rejects Chester and the grievant each had accumulated while running the 15857 job. I also asked what other work Chester performed on September 19, 1985 . The Company could not immediately answer these questions, ap- parently because records were not readily accessi- ble. Therefore, the Union requests the following in- formation which is relevant to the Union investiga- tion of this grievance. - 1. Copies of Company records indicating the number of pieces run on the 15857 Spindle and Wheel job for each employee in the Sanding De- partment for the, preceding twelve months, the performance level of each employee running this job and the total number of rejects for each em- ployee on this job. 2. Copies of Chester Hickman's production sheets or any other records indicating the jobs which Ches- ter Hickman performed on September 18, 1985. On 22 October, Snell replied by letter reading: This will respond to your letter of 10-17-85 and comments relating to your conclusion of our 10-16- 85 meeting on the above mentioned grievance. You were informed that the grievant , Mr. Saun- ders did not work on a specific job on the day in question as he did- not possess the skill level re- quired to do the job without having to have the job "reworked" or deemed not useable. The company's position and reasons for taking the action .it did was fully explained to the grievant, Mr. Saunders, and the steward, Mr. Cooper in a meeting held with our Area Manager, Mr. McKin- ney on 9-30-85. All parties agreed at this meeting that the matter was understood and closed. The company still considers the matter closed and sees no need to forward information as request- ed in your letter of 10-17-85., Pope wrote Snell another letter on 5 November reading as follows: Upon further investigation of the above men-' tioned grievance the Union has found that this grievance was `'`not closed" by the Union at any meeting between the parties . The fact that the grievant understood management's position and rea- soning on September ' 30, 1985, ,in no way closed the grievance. Further, after a grievance is put in writing, it be- comes the property of- the Union and a meeting is supposed to be held which includes the chairman of the grievance committee. In the Gerald Saunders grievance, the chairman was not included ' in any meeting until I discussed this grievance, with the Company on October 10, 1985 . Accordingly, Mr. McKinney's meeting was not a formal step of the grievance and should be disregarded as a formal -hearing: Previously the Union requested certain informa- tion from the Company pertaining to this grievance (letter dated 10-17-85). 'I am renewing the request and further intend to ask the National Labor Rela- tions Board ' [for] ' enforcement of the Union's re- quest. The Union requests an extention of time to file for arbitration on this grievance pending the Na- tional Labor Relations Board's investigation of this alleged violation of Section 8-A-5. If the Company denies an extension ' of time, please consider this a notice ' of intent to arbitrate this grievance. Respondent has not furnished the requested informa- tion, and the parties have agreed to an extension of time to file for arbitration until such time as the instant case is resolved. B. Contentions and Conclusions The complaint, as amended by the 'General Counsel's motion to strike a portion thereof at hearing, which was granted, alleges Respondent has improperly refused- to furnish the following information: (1) Copies of Company records indicating the number of pieces run on the 15857 Spindle and Wheel job for each employee in the Sanding De- partment for the preceding twelve months, the per- formance level of each employee running this job and the total number of rejects for each employee on this job. (2) Copies, , of Chester Hickman's production sheets or any other records indicating' the jobs which Chester Hickman performed on September 19, 1985. The issues are (1 ) whether the grievance was settled at the meeting of Cooper and Saunders with McKinney, (2) whether that settlement is binding on the Union, and, therefore, excuses Respondent from furnishing informa- tion relevant to the grievance, (3) whether the informa- tion requested is relevant to the Union's performance as exclusive collective-bargaining representative of Re- spondent's employees, and (4) whether it is overly bur- densome ' on Respondent to furnish the information sought. FRANK CHERVAN, INC. 755 I am persuaded the participants in the 30 September meeting believed the grievance was settled and finally disposed of. This is not, however, diapositive of the issue. Article V, section 3 provides that an earnest effort shall be made to settle grievances at each step, of the griev- ance procedure, but also specifically provides that a complaint shall be reduced to writing by the aggrieved employee if the "Chairman' of the Union Committee" deems the, complaint justified, and further, provides that settlement efforts after a written grievance is-submitted shall be made at a "conference between the employee in- volved, the Chairman of the Committee, the Plant Su- perintendent, steward .and foreman." This is a mandatory provision. Vernon Craig was the "Chairman of the Com- mittee." He received no notification of the grievance or the meeting and was not present at the 30 September meeting. The meeting was therefore not a `,`conference between the employee involved, the Chairman of the Committee, the Plant Superintendent, steward and fore- man" as article V, section 3(b) of the contract requires. There is no evidence the Union waived the necessity of the "Chairman of the Committeet's]" presence at such a conference, nor is there any ' contractual provision pro- viding for such a waiver, or any showing Cooper was acting as the "Chairman." Indeed, if he was there would then have been no steward present. For these reasons I conclude that the 30 September meeting was not a "con- ference" as contemplated by, article V, section 3(b) of the collective-bargaining agreement, and the 30 September "settlement" is not,binding on the Union. Accordingly, I further find that, notwithstanding the agreement of Cooper and Saunders that the matter was settled, Pope acted properly in pursuing the matter at the next, step of the procedure described in article V, section 3(c). It is well settled that the employer is required to fur- nish the exclusive bargaining representative of its em- ployees with information relevant and necessary to the Union's performance of its duties in discharging its role as employee representative in grievance proceedings.4 The contract plainly provides at article VII, section 5 that "Knowledge, skill and efficiency" is a controlling factor in determining layoffs, and an employee who con- siders himself aggrieved by the Respondent' s ' determina- tion of that factor has the right to file a grievance. Saun- ders was the senior employee, and he was laid off on 19 September while Hickman performed work' that Saun- ders claims he is capable of performing. The Union is en- titled to information in Respondent's control that is rele- vant to the grievance. Without the relevant information the Union is severely disabled in its efforts to evaluate and process Saunders' grievance. The information must be produced if there is only a probability it is relevant and useful to the Union in processing and assessing the merit of the grievance.5 The question is "whether the in- formation . . . is helpful in evaluating the merits of the *ievance and the propriety of pursuing the grievance to 'nitration."s The answer, I believe, is that it is. Pope g., Postal Service, 276 NLRB 1282, 1285 (1985), and cases cited v. Pfizer, Inc., 763 F. 2d 887 (7th Cir. 1985), enfg. 268 NLRB WL Molding Co., 272 NLRB 1239 (1984). i Technologies Corp., 274 NLRB 504, 506 (1985). persuasively explained that the information sought re- garding all employee performance on work of the type in question was necessary for an evaluation of the rela- tive qualifications of Saunders and Hickman with respect to each and with respect to all employees performing that work. That the relative past performance of Saun- ders and Hickman is relevant- to the issue of relative qualifications to do the same work on 19 September is obvious. Moreover, I agree with Pope that inasmuch as the contract refers to "relatively equal" knowledge, skill, and efficiency, the average performance of all employees working on the particular job provides a measuring point from which to ascertain whether, and by how much, the performance of Saunders and Hickman deviated from that norm. If there be but' a slight variance from the av- erage by both, it might be argued that their performance and this knowledge, skill, and efficiency, is relatively equal. On the other hand, a much better than average performance by one would overshadow an average or less than average performance by the other and tend to show differences in knowledge, skill, and efficiency, as would a barely average performance contrasted against a far below average one. There are other, possible vari- ations, but it suffices to note that these examples illus- trate the usefulness of the information sought to the grievance evaluation process. The Union is therefore en,- titled to the records showing the information regarding the 15857 Spindle and Wheel job that it requested in its 17 October letter. There is some indication in .the record that reject ,records are not kept and therefore cannot be produced. Whether or not reject records exist is, howev- er, a matter best left to the compliance stage of these proceedings. As to paragraph 2 of the Union's request letter, what Hickman produced on 19 September is rele- vant to the question of whether his allegedly special abilities were really needed and for how long on that date. Hickman's special qualifications are the primary as- serted reason given for Saunders layoff on 19 September. If Hickman did not in ' fact perform the work denied Saunders on a relative qualifications basis, the informa- tion is probably dispositive of the grievance. If Hickman did perform the work, but only for a few minutes, or hours,, the layoff of Saunders for,the entire day is placed in question. There are, as always in these situations, other variations that may be conjured up`to support or defeat the grievance, but, whatever the ultimate determi- nation of the grievance on its merits, the records reflect- ing Hickman's performance on 19 September are clearly relevant. Respondent's affirmative defense that it is overly bur- densome to require the production of the above records is not impressive. Respondent maintains weekly comput- er printouts of individual employee production according to Pope, who is credited in the absence of persuasive countervailing evidence, and the production of the 19 September work record of Hickman would seem to re- quire little effort by Respondent. Apart from its bare contention, Respondent adduced no reasonable modicum of supporting evidence for any theory of excessive burden, and therefore has not met its burden of proving it was faced with an unreasonable burden if it complied 756 DECISIONS OF THE NATIONAL "LABOR RELATIONS BOARD with the request. Accordingly, the defense that to re- quire the production of the requested data would be overly burdensome is denied. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.' 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By refusing to furnish the Union with information requested in connection with the grievance of Gerald Saunders, Respondent has engaged in unfair labor prac- tices affecting commerce within , the meaning of Section 8,(a)(5) and (1) and Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed' ORDER The Respondent, Frank Chervan, Inc., Bedford, Vir- ginia, its officers, agents, successors,-and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Amalgamated Clothing and Textile Workers Union, AFL-CIO, CLC, as the ex- clusive' bargaining representative of the employees in the following bargaining unit by refusing to furnish it with information it requests that is relevant and reasonably necessary to the processing of employee grievances: All production and maintenance employees, but ex- cluding salaried and clerical employees, guards, watchmen, assistant foremen, foremen and supervi- sors. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them-by-Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. - (a) Immediately furnish the Union with the informa- tion it requested by letter of 17 October 1985 in connec- tion with the grievance of Gerald Saunders. 7 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102.48 of the Rules, be adopted by -the Board and all objections to them shall be deemed waived for all pur- poses. (b) Post at its facility in Bedford, Virginia, copies of the,attached notice marked "Appendix."s Copies of the notice, on forms, provided by the Regional Director for Region 5, after being signed by the Respondent's author- ized representative, -shall be -posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what 'steps the Re- spondent has taken to °comply.9 8 If this Order is enforced by a judgment of'a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al 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."' 9 The circumstances of this case do not warrant the inclusion of a visi- tatorial clause authonzing the Board, for compliance purposes, to obtain discovery from Respondent under the Federal Rules of Civil Procedure under the supervision of any United States court of appeals enforcing this Order. 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 violated the National Labor Relations Act and has or- dered us to post and abide by- this notice. WE WILL NOT refuse to bargain with Amalgamated Clothing and Textile Workers Union, AFL-CIO, CLC, as the exclusive bargaining representative of our employ- ees in an appropriate unit, by refusing, on request, to fur- nish it ' with information relevant and reasonably neces- sary to the processing of unit employee grievances. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. WE WILL immediately furnish the Union with the_ in- formation it requested by letter of 17 October 1985 in connection with the grievance of Gerald Saunders. FRANK CHERVAN, INC.