Local No. 3, I.B.E.W.

LOCAL NO. 3. I.B.E.W'. Local No. 3, International Brotherhood of Electrical Workers, AFL-CIO and Nixdorf Computer Corporation. Case 2-CB-7907 September 29, 1980 DECISION AND ORDER BY CHAIRMAN FANNING ANt)D MEMBERS JENKINS AND PENEI.LO On June 30, 1980, Administrative Law Judge Howard Edelman issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the Charging Party filed an answering brief in opposition to Re- spondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Local No. 3, International Brotherhood of Electri- cal Workers, AFL-CIO, its officers, agents, and Respondent has excepted to certain credthilitN findings made by the Administrative Lawv Judge It is the Board's estahlished polic, nlt to overrule an adminislratlie law judge', resolufiols with respect to credi- bility unless Ilte clear preponderance of all of the relevant eidence con- vinces us that the resolution, are incorrect Stuandurd Dr) all Prodult. Inc., 91 NLRB 544 (1951), enfd. 188 F2d 362 (d Cir 1951) We halc carefully examined the record and find no bahsis fr reversing his findings In reaching this conclusion, e have carefully considered Respondent's argument that the Adilnilmratisc Law Judge committed reversible error h) taking judicial not ice of the credihilit findings of an adminlstral e law judge in a companion case While it is generlly. inappropriate fr arl administrative law judge to rely on credibility findings made i another case. we note that the Administrative Law Jdge here did not predicate his credibility resolutions on the credibility findings in he compaiitlion case, but rather based his resolution on the demeanor of the uuItinse,,s and the record as a whole In his Decision, the Administrative I.au. Judge noted that Respond- ent's attorney. Normaln Rothfeld. had characterizied the Company's p,s- tion regarding modification of the certified unit as "ulconscionable " rWe are unable to locate this statenmetr in the record Acciirdingly, e hereby correct the Decilsion in this regard In his recommended ()rder. te Admiistlratis I lau Judge failed to direct Respotndent Io ceise ad desist front egaginig n al): like or relati- ed conduct, and failed to include the language "and embody an) under- standing reached in a signed agreertieni" in that section of he Order di- recting Respondenl ti bargain, upon request, with Nxdorf Conmputr Corporation We shall nilodify his recommnilded ()rder It) include thlese prou isiorns 252 NLRB No. 82 representatives, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following as paragraph l(b): "(b) In any like or related manner engaging in conduct in derogation of its duty to bargain in good faith." 2. Substitute the following for paragraph 2(a): "(a) Upon request bargain collectively with Nix- dorf Computer Corporation concerning wages, hours, and working conditions in the appropriate unit, and embody any understanding in a signed agreement." 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICi To MEMBERS POSTED BY ORDER OF THE NATIONAI. LABOR REI.AIONS BOARD An Agency of the United States Government WE Wll.t NOI refuse to bargain with Nix- dorf Computer Corporation, with respect to the Board-certified unit described below, by adamantly insisting upon changes in the certi- fied unit with respect to job classification and geographical coverage. The certified unit for which we are the statutory exclusive collec- tive-bargaining representative is: All associate field engineers, field engineers I & 1, senior field engineers, and dispatch- ers, employed by Nixdorf at 40 West 57th Street, New York, New York; 225 West 34th Street, New York, New York; and 3003 New Hyde Park Road, New Hyde Park, New York, excluding guards, all other employees and all supervisors as defined by the Act. Wi: wII1 NOT in any like or related manner engage in conduct in derogation of our duty to bargain in good faith. Wi. wi.l., upon request, bargain with Nix- dorf Computer Corporation concerning wages, hours, and other terms and conditions of em- ployment of the employees in the appropriate collective-bargaining unit described above. and embody any understanding reached in a signed agreement. LOCAlI No. 3, INTERNA'IIONAI. BROTHERHOOD OF EItECTRICAI. WORKERS, AFL-CIO 5319 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE HOWARD EDELMAN, Administrative Law Judge: This was heard in New York, New York, on February 19, 1980. Pursuant to charges filed in Case 2-CB-7907 by Nixdorf Computer Corporation herein called Nixdorf or the Company, the Regional Director for Region 2, on August 22, 1979, issued a complaint and notice of hear- ing. The complaint alleged that Local Union No. 3, In- ternational Brotherhood of Electrical Workers, AFL- CIO, herein called Respondent, violated Section 8(b)(3) of the Act. The complaint in substance alleges that during collective-bargaining negotiations between Nix- dorf and Respondent, Respondent has at all times de- manded as a condition of consummating any collective- bargaining agreement that Nixdorf include in such col- lective-bargaining agreement a recognition clause which includes classifications of employees specifically excluded in a Board-certified unit. Briefs have been received from all parties and have been duly considered. Upon the entire record, including my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTION Nixdorf, a Massachusetts corporation, is engaged in the manufacture, sale, and leasing of computer equipment and related products. At all times material herein Nix- dorf has maintained its principal office in Burlington, Massachusetts, as well as offices and places of business at one Penn Plaza, New York, New York, 40 West 50th Street, New York, New York, and 3003 New Hyde Park Road, New Hyde Park, New York. During the past year, Nixdorf in the course of its operations purchased and received, at its New York facilities, goods and mate- rials valued in excess of $50,000 directly from points out- side the State of New York. Respondent admits, and I find that Nixdorf is an employer within the meaning of Section 2(2), (6), and (7) of the Act. Respondent also admits and I find that it is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. 11. THE AILEGEI) UNFAIR LABOR PRACTICES In June 1978, a National Labor Relations Board elec- tion was conducted by the Board in connection with cer- tain employees employed by Nixdorf. Thereafter, on July 11, 1978, Respondent was certified as the exclusive collective-bargaining representative of the unit of em- ployees set forth below: All associate field engineers, field engineers I & 11, senior field engineers, and dispatchers, employed by the Employer at 40 West 57th Street, New York, New York, 225 West 34th Street, New York, New York, and 3003 New Hyde Park Road, New Hyde Park, New York, excluding guards, all other employees, and all supervisors as defined by the Act. At the time the certification issued, Nixdorf employed approximately 26 employees in the unit described above. At the same time, Nixdorf also employed several em- ployees in the classifications "district and regional spe- cialists." Nixdorf additionally had a classification "dis- trict field engineer." However, no employees were em- ployed at the time of the hearing or at the time bargain- ing took place in this classification. Collective-bargaining negotiations between the parties commenced on August 22, 1978. These negotiations con- tinued periodically, approximately one negotiation ses- sion every 3 weeks, from August 22, 1978, through Janu- ary 1980. There were approximately 15 collective-bar- gaining sessions in all. The collective-bargaining sessions conducted from August 22, 1978, through October 1979 were conducted under the supervision of the Federal Mediation and Conciliation Service and bargaining ses- sions took place at their offices at the World Trade Center. In or about October 1979, the mediator informed the parties that he would no longer be in attendance. However, parties continued to use their facilities at the Trade Center for bargaining. The chief negotiator for Nixdorf was its attorney, Paul Lyons. Also present for Nixdorf at these negotiations was attorney Steve Hengen and various other company officials. Respondent's nego- tiating team was headed by John Crowley, business rep- resentative. Also present for Respondent during these ne- gotiations was a negotiating committee consisting of var- ious unit employees employed by Nixdorf who were members of Respondent. At the initial bargaining session on August 22, Crow- ley presented Respondent's proposals to the Company in the form of a draft contract. There was no discussion concerning the specific proposals set forth in this con- tract during this session. However, it was agreed that ne- gotiations would generally take place by a discussion of the draft proposals set forth in Respondent's proposed contract in chronological order. Following a discussion of Respondent's proposals, Nixdorrs proposals would be discussed similarly in chronological order. Article I, section 11, of Respondent's proposals pro- vided as follows: All field engineers, dispatchers, district specialists and regional specialists employed by the company in or out of the employer's New York Metropolitan Area and Long Island offices and/or performing service modification or installation work in the geo- graphic area covered by this agreement on products sold, installed, or maintained by Nixdorf Computer Corporation and any products now and hereafter developed. The New York Metropolitan Area in- cludes the five (5) boroughs, Long Island and the counties of Westchester, Putnam, Rockland, Dut- chess, Ulster, and Orange and the county of Fair- field in Connecticut.' At the hearing, the General Counsel moved to amend par 9(a) of the complaint to include the demand by Respondent that as a condition of consummating a collective-bargaining agreement the employer Nixdorf agree that the unit covered by such agreement must include all locations in or out of the employer's New York Metropolitan Area and Long Continued 540 IO()CAL NO. 3, IB.E.W. The second bargaining session was held on September 22, at the Sheraton Inn at LaGuardia Airport, New York City. During the course of this session, Company Repre- sentative Lyons objected to the inclusion by Respondent in its unit proposal of the job classifications "regional specialist, district specialists, and district field engineers." Lyons told Respondent's representatives that these three classifications were not included in the Board-certified unit and therefore should not be included in Respond- ent's proposed bargaining unit. Crowley responded that district and regional specialists were performing bargain- ing unit work. Lyons restated Nixdorfs position. Ac- cording to the testimony of Barry Blanchard, who was present at the negotiation and employed at the time by Nixdorf as the director of industrial relations, Crowley stated, "In that case no contract will be signed." Crow- ley denies this statement. For reasons set forth below I credit Blanchard. 2 Lyons pointed out that this area was the subject of permissive bargaining and that he would not discuss it. According to Blanchard, Lyons also told Crowley that Respondent's unit demand covered a geo- graphic area outside the scope of the certification. Crow- ley responded that for purposes of this agreement the counties set forth in Respondent's proposed unit would be included.3 The next bargaining session where Respondent's unit demand was discussed took place in June 1979. This meeting and all other negotiation sessions discussed herein took place at the offices at the Federal Mediation and Conciliation Service in New York. During the meet- ing and in connection with a discussion of a section of Respondent's demands relative to job descriptions, Com- pany Representative Lyons asked if the term job descrip- tion as used in Article 21 of Respondent's demands re- Island offices including the five boroughs, Long Island, the counties of Westchester, Putnam, Rckland. Dutchess. Ulster. and Orange in New York and the county of Fairfield in Connecticut The General Counsel contends that to the extent the geographical location set forth in Re- spondent's demands exceeds the geographic location set forth in the certi- fication Respondent has insisted upon the inclusion in any collective-bar- gaining agreement executed by the parties of a nonmandator) condition. 2 Blanchard impressed me as a truthful and frthright witness His an- swers during direct-examination and cross-examination were responsive Moreover. Blanchard at the lime of his testimony was no longer em- ployed by Nixdorf His testimony therefore was more that of a neutral and impartial witness I find Crowley's denial of the statement attributed to him by Blanchard to be inconsistent with the position that he took throughout negotiations In this connection, Crowley testified that the very reason Respondent included the additional classifications in its pro- posed bargaining unit was based on its contention that the employees in these classifications were performing bargaining unit work. Moreover. during the entire course of negotiations Crowley testified that he in- formed Lyons at various negotiations that the purpose of Respondent's unit demand was to protect the work of the bargaining unit. In this regard he informed Lyons that district and regional specialists were doing unit work In view of this testimony by Crowley Blanchard's testi- mony that Crowley stated that he would not sign a contract unless the Union's proposed unit was included is logical and consistent with the po- sition assumed by Crowley throughout the negotiations. Moreover, I take judicial notice of a recent decision issued by Administrative Law Judge Steven B. Fish, in connection with the same dispute wherein he conclud- ed that Crowley was not a credible witness. Local Union No. 3. Interna- rional Brotherhood of Electrical Worker. AFL-CIO (Nixdorf Computer Corporation. JD-(NY)-18 80 I At the time of the hearing the Company had no facilities in West- chester. Rockland. Putnam. Orange, Dutchess, and Ulster counties in New York or in Fairfield county in Connecticut ferred to the certified unit or the unit as demanded by Respondent. The Federal mediator who was present at this negotiation stated that the certified unit should be discussed. Lyons stated that he could live with the certi- fied unit. Crowley stated he could not. At this meeting, or the following meeting in July 1979, Crowley again contended that district and regional specialists were per- forming unit work. No further discussion took place in connection with Respondent's demand concerning the bargaining unit at this bargaining session. The next bargaining session was held in July 1979. During this session a discussion took place concerning a section in Respondent's demands relative to district and regional specialists. Crowley stated that senior field engi- neers should be able to be promoted into a district or re- gional specialists category and if necessary return to a field engineer classification. Lyons asked how this relat- ed to seniority provisions for those who left the unit and later returned. Crowley stated he considered the district and regional specialists positions to be in the unit. Lyons asked Crowley if he would sign a contract without these classifications in the unit. Crowley stated he could not envision that happening. The next bargaining session where the unit issue was discussed, took place in October 1979. During this dis- cussion, Lyons stated that for further negotiations he considered the unit to be that encompassed by the certifi- cation. Crowley responded that he considered the unit to be that reflected in Respondent's contract proposals. There was no further discussion during the course of this session concerning the bargaining unit. The next meeting at which the bargaining unit was discussed took place in January 1980. Present for Re- spondent in addition to Crowley was Respondent's attor- ney Norman Rothfeld. During the course of this session Lyons stated the company proposals related to those classifications covered by the certified unit. Rothfeld re- plied that the company position as to the unit was unconscionable. Since the January 1980 meeting, no further negotia- tions have taken place. On January 15, 1979, Respondent commenced an eco- nomic strike against Nixdorf. Approximately 13 or 14 unit employees, of the 26 bargaining unit members went out on strike. As of the date of this hearing, this econom- ic strike was still in progress. During the course of this strike, Respondent hired replacements to perform unit work. To date, 30 to 31 employees are presently em- ployed by Respondent within the classifications set forth in the certified unit. Since the certification issued, two field engineers have been promoted to the disputed specialists categories. Analysis and Conclusion The Board has continually held that the modification of a Board-certified unit is not a mandatory subject of bargaining and that the insistence by a party in the face of a continuing rejection upon modification of a Board- certified unit as a condition of consummating a collec- tive-bargaining agreement constitutes refusal to bargain in good faith. Newport News Ship Building, 236 NLRB 541 DECISIONS OF NATIONAL LABOR RELATIONS H()OARD 1637, 1643 (1978); Newspaper Printing Corporation, 232 NLRB 291 (1977); National Fresh Fruit & Vegetable Company and Quality Banana Co., Inc., 227 NLRB 2014 (1977); International Longshoremen's Association, 118 NLRB 1481 (1957). The evidence establishes that throughout the collec- tive-bargaining negotiations between the parties herein, Respondent continually insisted, in the face of the Com- pany's continuing rejection, that any collective-bargain- ing agreement negotiated must contain a recognition clause which included the classifications of district and regional specialists. There is no dispute that such classifi- cations were excluded from the certified unit herein. That Respondent insisted such classifications must be in- cluded in any agreement negotiated herein is established by the following. At the initial bargaining session on August 22, Respondent's written proposals set forth a unit broader in both the included classifications and in the geographical coverage in the certified unit. At the second bargaining session on September 22, Crowley in response to the Company's objection to the inclusion of the additional specialist classifications informed Lyons, the company negotiator, that unless the Company agreed to the inclusion of the district and regional specialists, no contract will be signed. During this meeting Lyons also objected to the inclusion, to the extent it varied from the certification, of the broad geographic coverage of Re- spondent's recognition clause. Crowley's response to this objection was that, for purposes of this agreement, the counties set forth in Respondent's proposed unit would be included. I find that the context of these negotiations, all further discussions concerning Respondent's proposed recognition clause, included by implication the geograph- ical variation set forth in Respondent's initial demands. In the June 1979 negotiation, during a discussion of the recognition clause, Lyons stated that he could live with the certified unit. Crowley responded he could not. In the July 1979 negotiation, during a discussion of the bar- gaining unit, Crowley stated he considered the district and regional specialists to be within the unit. When Lyons asked Crowley whether he would sign a contract without these classifications in the unit, Crowley said he could not envision that happening. During the October 1979 negotiation, Lyons stated that for further negotia- tions he considered the unit to be that encompassed by the certification. Crowley responded that he considered the unit to be that reflected in Respondent's contract proposals. Finally, during the last negotiation held in January 1980, Lyons stated that the company proposals related to those classifications covered by the certified unit. Respondent's attorney Rothfeld replied that the Company position as to the unit was unconscionable. Moreover, Crowley, during the course of his testimony admitted that Respondent, throughout the negotiations, repeatedly demanded that the union recognition clause include district and regional specialists and that the Com- pany repeatedly took the position that his demand was en illegal demand to which they would not agree. On the basis of these essentially undisputed facts, I conclude that at all times during the course of negotiations, Re- spondent insisted that any contract negotiated must con- tain Respondent's unit proposal. To insist upon such variation from the certified unit in the face of the Com- pany's repeated objections constitutes refusal to bargain by Respondent in violation of Section 8(b)(3) of the Act. Respondent's contention that no impasse was reached because of the number of unresolved issues is really not germane to the issue before me. The real thrust of the authorities cited herein is that the insistence of a non- mandatory subject of bargaining, as a condition to the execution of a collective-bargaining agreement in the face of repeated rejection by the other party, is in itself in violation, whatever the state of negotiations as to other proposals may be. As set forth in National Fresh Fruit. supra, the fact that there may have been other un- resolved issues extant at the close of bargaining, in addi- tion to the unit issue does not exculpate Respondent from liability. "It is sufficient if the clerks unit placement was one of the unresolved points facing the parties which prevented agreement, the law is clear that an im- passe may result from one or a number of unresolved dif- ferences of position." Thus, Respondent's argument that an impasse could not have taken place because of the number of unresolved issues still on the bargaining table is without merit. Respondent additionally contends that it was not seek- ing to expand upon the certified unit, but rather seeking by its demand to include district and regional specialists because they were performing unit work. In support of this contention Crowley testified that on the day of the election he observed a district specialist working along- side a field engineer apparently performing the same work. Crowley additionally testified that between the date of the election and the first collective-bargaining ne- gotiation, on August 22, several unnamed unit employees informed him that district and regional specialists were performing unit work. However, at no time during the hearing did Respondent introduce evidence to establish just what unit work was allegedly being performed by these district and regional specialists. Respondent's con- tention in this regard is therefore unsupported by any competent evidence. However, assuming Respondent's contention to be true, nevertheless it would appear that Respondent is confusing eligibility within the certified unit with unit composition. It is one thing for Respondent to argue that specific in- dividuals employed in classifications not within the certi- fied unit but allegedly performing unit work be included within the certified unit, but quite another to insist that the classification to which these individuals belong be added to the unit. The demand for inclusion of additional classifications as a condition to the execution of a collec- tive-bargaining agreement, as opposed to a demand for inclusion of those specific individuals allegedly perform- ing unit work, constitutes a demand for an expanded unit. Such demand, involving a nonmandatory subject of bargaining in the face of continuing company rejection constitutes a refusal to bargain in violation of the Act. Accordingly, I conclude that Respondent throughout the course of collective-bargaining negotiations insisted that any collective-bargaining agreement consummated must include a union recognition clause which was broader than the certified unit in the job classification in- 542 LOCAL NO. 3. 1.IH.E.W eluded and geographical area covered. I further con- clude that the insistence of such clause by Respondent in the face of repeated rejection by the Company consti- tutes an unlawful refusal to bargain in violation of Sec- tion 8(b)(3) of the Act. CONCI.USIONS OF LAW 1. Nixdorf is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent is the exclusive collective-bargaining representative of all associate field engineers, field engi- neers I and II, senior field engineers, dispatchers, em- ployed by Nixdorf at 40 West 57th Street, New York, New York, 225 West 34th Street, New York, New York, and 3003 New Hyde Park Road, New Hyde Park, New York, excluding guards, all other employees and supervi- sors as defined in the Act. 4. By demanding, as a condition of consummating a collective-bargaining agreement that Nixdorf agree that the unit covered by such agreement must include job classifications and geographical coverage not encom- passed within the Board-certified unit, Respondent has violated Section 8(b)(3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has committed certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and take certain af- firmative action deemed necessary to effectuate the poli- cies of the Act. Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this proceeding, I hereby issue the following recommended: ORDER 4 The Respondent, Local Union No. 3, International Brotherhood of Electrical Workers, AFL-CIO, its offi- cers, agents, and representatives, shall: 4 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of he National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided n 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. 1. Cease and desist from: (a) Refusing to bargain with Nixdorf Computer Corpo- ration, herein called Nixdorf, with respect to the Board- certified unit described below, by adamantly insisting upon changes in the certified unit with respect to job classifications and geographical coverage. The certified unit for which Respondent is the statu- tory exclusive collective-bargaining representative is: All associate field engineers, field engineers I & 11, senior field engineers, and dispatchers, employed by the Employer at 40 West 57th Street, New York, New York, 225 West 34th Street, New York, New York, and 3003 New Hyde Park Road, New Hyde Park, New York, excluding guards, all other employees, and all supervisors as defined by the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Bargain with Nixdorf concerning wages, hours, and other terms and conditions of employment of the em- ployees in the appropriate collective-bargaining unit de- scribed above. (b) Post at Respondent's offices and meeting halls, and all places where notices to members are customarily posted, copies of the attached notice marked "Appendix A." 5 Copies of said notice on forms provided by the Re- gional Director for Region 2, after being duly signed by Respondent's representatives, shall be posted by it imme- diately upon receipt thereof, and be maintained by Re- spondent for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Sign and mail sufficient copies of said notice to the aforesaid Regional Director for forwarding to Nixdorf for information and, if they are willing, for posting by them in all locations where notices to employees are cus- tomarily posted. (d) Notify the Regional Director for Region 2, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 5 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 543