Hoffman Air & Filtration Systems

National Labor Relations Board - Board Decisions

Feb 16, 1995

316 N.L.R.B. 353 (N.L.R.B. 1995)

353
316 NLRB No. 69
HOFFMAN AIR & FILTRATION SYSTEMS
1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In sec. II,D,2, of his decision, the judge found that the Respondent
did not allow its representatives to discuss its written answers with
the Union at step-2 grievance meetings. The record indicates, how-
ever, that the Union could request a second step-2 meeting at which
the Respondent’s representatives would elaborate on its answers in
response to specific questions. We correct this inadvertent error, and
note that this does not affect our decision.
1 The Respondent’s answer states that Sec. 10(b) of the Act bars
a finding of a violation of the Act as to any incident occurring prior
to the limitations period set out in that section. There is no such
issue before me as all the dates of the alleged violations are within
the 6-month period antedating the filing and service of the unfair
labor practice charge in this case.
Hoffman Air & Filtration Systems, Division of
Clarkson Industries, Inc. and Local Union
4496, United Steelworkers of America, AFL–
CIO, CLC. Case 3–CA–17365
February 16, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND COHEN
On June 2, 1994, Administrative Law Judge James
F. Morton issued the attached decision. The Respond-
ent filed exceptions and a supporting brief.1 The Gen-
eral Counsel filed a brief in response to the Respond-
ent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Hoffman Air & Filtration
Systems, Division of Clarkson Industries, Inc., Syra-
cuse, New York, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Michael Cooperman, Esq., for the General Counsel.
Norman A. Quandt, Esq. and Pamela M. Jones, Esq. (Clark,
Paul, Hoover & Mallard), of Atlanta, Georgia, for Hoff-
man Air & Filtration Systems, Division of Clarkson Indus-
tries, Inc.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The com-
plaint alleges that Hoffman Air & Filtration Systems, Divi-
sion of Clarkson Industries, Inc. (the Respondent) has en-
gaged in unfair labor practices within the meaning of Section
8(a)(1) and (5) of the National Labor Relations Act (the
Act). The Respondent is alleged to have threatened its em-
ployees to discourage them from engaging in an activity pro-
tected by the Act and to have failed to bargain collectively
with Local Union 4496, United Steelworkers of America,
AFL–CIO, CLC (the Union), the representative of the Re-
spondent’s production and maintenance employees at its fa-
cility in Syracuse, New York. The Respondent, in its answer,
denies those allegations.1 It also asserts that litigation as to
certain of those allegations should be deferred to arbitration.
The General Counsel opposes deferral.
I held a 7-day hearing in this case beginning on July 26
and ending on September 23, 1993. On the entire record, in-
cluding my observation of the demeanor of the witnesses,
and after considering the briefs filed by the General Counsel
and the Respondent, I make the following
FINDINGS OF FACT
I. COMMERCE AND LABOR ORGANIZATION
On September 23, 1993, the Board issued a Decision and
Order at 312 NLRB 349 finding, inter alia, that the Respond-
ent is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act, and that the Union
is a labor organization as defined in Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent and the Union have a collective-bargain-
ing relationship which goes back over 30 years and which
pertains to a unit of production and maintenance employees
at the Respondent’s plants in Syracuse, New York. In 1992,
the year in which the alleged violations referred to above
took place, there were about 35 employees in that unit.
B. The Deferral Issue
The Respondent asserts that the allegations in paragraph
XI of the complaint, that it unilaterally changed terms and
conditions of employment of unit employees in four respects,
should be deferred for resolution via arbitration in accord-
ance with the provisions of the collective-bargaining agree-
ment it has with this Union. The General Counsel contends
that deferral is unwarranted in view of the alleged repeated
failures of the Respondent to have bargained in good faith
with the Union as to many grievances filed by the Union,
which failures are alleged as separate violations of the Act.
A similar deferral issue had been considered by Adminis-
trative Law Judge Karl Buschmann and by the Board in the
decision noted above involving this same Respondent and
this same Union. There, Judge Buschmann addressed the de-
ferral issue at the outset of his decision. In doing so, he con-
sidered the complaint allegations and declined to defer. The
354 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Board, on exceptions and after reviewing the merits thereof
which required it to make findings as to the merits of various
of the allegations of the complaint, granted deferral as to
other allegations, as to which Judge Buschmann had found
merit. I shall, of course, follow the Board’s approach and
defer ruling on the motion to defer to arbitration the matters
alleged in paragraph XI of the complaint until the other
issues are considered.
With due respect, it is recommended that the Board con-
sider adopting a procedure whereby deferral issues can be re-
solved prior to a hearing thereon. The approach used in the
prior case calls for the presentation of considerable testimony
and briefing as to the merits which, if deferral is later grant-
ed, would prove to be costly surplusage in time and money
for the Board and the parties. That approach does not seem
to comport with some of the reasons for the deferral doctrine
itself, i.e., that the Board’s deferral procedures will ensure ‘‘a
quick and fair means for the resolution of the dispute’’
(Collyer Insulated Wire, 192 NLRB 837, 839 (1971)) and
will conserve ‘‘the limited resources’’ of the Board (United
Technologies Corp., 268 NLRB 557, 559 (1984)).
C. The Alleged Unlawful Threat
Anthony Egnoto, a staff organizer for the United Steel-
workers of America, AFL–CIO, was helping the Union serv-
ice the collective-bargaining agreement. He had become in-
creasingly annoyed by what he viewed as the cavalier way
in which the Respondent rejected the Union’s grievances. On
November 13, 1992, he informed the Respondent’s produc-
tion manager, Richard Gozigian, that the Union was consid-
ering setting up an informational picket line outside the plant
during the period in which the Respondent would be meeting
with its customers, who are apparently independent sales rep-
resentatives. Egnoto also told Gozigian that the Respondent
and the Union should start working together to resolve the
grievances, that maybe Gozigian would listen to his cus-
tomers, and that picketing was one of the options the Union
was considering.
On that same day, the Respondent’s president, George
Bagnall, wrote the following letter to Egnoto, and he sent
copies to all the unit employees:
It has been brought to my attention that you tele-
phoned the Company today and made statements indi-
cating that you, and possibly certain employees of
Hoffman, intend to engage in various activities de-
signed to harass, embarrass, and attempt to hurt our
Company’s business relationship with numerous cus-
tomer representative who will be meeting with the
Company during our national sales conference in the
next few days.
The Company views such threats, if put into action,
as very serious and an attempt to undermine our busi-
ness. Furthermore, any action designed to denigrate this
Company in the eyes of our customers would be a clear
violation of Article XXVIII of our collective bargaining
agreement with your Union. We are currently consult-
ing with our legal counsel and will take whatever legal
action is appropriate, including a labor board charge, a
defamation suit against your union, and possible dis-
ciplinary action up to and including discharge against
any employee involved in such activity, in the event
you proceed with your threatened actions.
I urge you and our employees to reconsider your
threats and cease and desist from taking any action de-
signed to disparage our Company in the eyes of our
customers.
In Eastex, Inc. v. NLRB, 437 U.S. 556 (1978), the Court
held that employees do not lose their protection under the
‘‘mutual aid or protection’’ clause of Section 7 of the Act
when they seek to improve terms and conditions of their em-
ployment or otherwise improve their lot as employees
through channels outside the immediate employee-employer
relationship. The Respondent’s employees, under this hold-
ing, would be protected by Section 7 when informing the Re-
spondent’s customers of their complaint that the Respondent
has not dealt with the Union in good faith respecting their
grievances. The Respondent’s attempt to characterize such
conduct as analogous to that found unprotected in NLRB v.
Electrical Workers IBEW Local 1229, 346 U.S. 464 (1953),
fails as that case is factually inapposite to the instant case.
Here, Egnoto informed the Respondent that the Union in-
tended to convey the employees’ concerns as to a matter in-
tegral to the Union’s collective-bargaining relationship with
the Respondent, a factor critically missing in the Electrical
Workers IBEW Local 1229 case.
Bagnall’s letter indicated that any employee who would
follow Egnoto’s lead would thereby violate the provisions of
article XXVIII of the collective-bargaining agreement. That
article reads:
All members of the Union shall individually and col-
lectively perform faithful and efficient work to the best
of their ability and shall cooperate with the Company
and with the employees of their own and other depart-
ments in promoting and advancing the welfare of the
Company at all times.
I see no basis to find a conflict between the activities pro-
posed by Egnoto and the language of that article. At best,
the Respondent might have contended that article XXVII im-
plies a waiver by the Union of its right to engage in informa-
tional picketing but such a contention would fail as it is well
settled that a waiver of employee Section 7 rights must be
clear and unequivocal. Food & Commercial Workers Local
1439 (Rosauer’s Supermarkets), 293 NLRB 26 (1989).
Bagnall’s letter, rather, is an unlawful restriction of those
employee rights. Cf. Southern Maryland Hospital Center,
293 NLRB 1209, 1222 (1989), in which the Board held that
the employer there violated the Act by prohibiting ‘‘deroga-
tory attacks’’ by its employees upon hospital representatives.
I therefore find that the Respondent, by Bagnall’s letter of
November 13, unlawfully threatened its employees with dis-
charge, and with other reprisals, if they attempted to exercise
their rights under Section 7 of the Act to publicize to the Re-
spondent’s customers their view that the Respondent is not
fulfilling its bargaining obligation towards the Union as to
the grievances it has filed on behalf of unit employees.
355HOFFMAN AIR & FILTRATION SYSTEMS
D. The Alleged Bad-Faith Bargaining
1. The contentions and background data
The complaint alleges that, since April 1992, the Respond-
ent has failed to bargain collectively with the Union concern-
ing grievances. The General Counsel contends that the Re-
spondent has long pursued a strategy of evading settlement
of every grievance in order to undermine support for the
Union. As discussed further below, the General Counsel of-
fered extensive background testimony in connection with that
contention.
The Respondent denies that it has been bargaining in bad
faith. It asserts that it has met with the Union, discussed the
grievances, given consideration to the concerns raised by the
Union, and determined that all those grievances lacked merit.
A good part of the background evidence offered by the
General Counsel overlaps evidence presented at the hearing
in 1990 in the prior case involving these same parties, re-
ported as noted above at 312 NLRB 349.
In the interval 1983–1988, the Union had filed an average
of nine grievances a year. A new 3-year collective-bargaining
agreement became effective on January 1, 1989. There were
19 grievances filed in the first 7 months of 1989, most of
which related to overtime pay.
On July 31, 1989, George Bagnall became the Respond-
ent’s president. In the remaining 5 months of 1989, 53 griev-
ances were filed. In 1990, 106 were filed; in 1991, 86; and
in the last period for which figures were given, i.e., the first
10 months of 1992, 47 grievances were filed. The Respond-
ent has stated that the Union had undertaken a campaign of
filing frivolous, harassing grievances. In effect, the Respond-
ent argues that it has responded to such tactics by the Union
by applying the grievance provisions precisely as set forth in
the collective-bargaining agreement. The General Counsel
disputes the assertion that the Union has engaged in such tac-
tics and argues that there is no persuasive evidence thereof
in the record. The issue arising from these contentions is tan-
gential to the critical issues in this case, which is whether
the Respondent, vis-a-vis the grievances, was engaged in
hard, lawful bargaining or whether it discussed them with the
Union with a fixed mind, to reject all regardless of potential
merit.
The prior case involving those same parties arose with the
filing of an unfair labor practice charge by the Union on De-
cember 28, 1989. The complaint therein alleged that the Re-
spondent, in late 1989, had engaged in various unfair labor
practices within the meaning of Section 8(a)(1) and (3) of the
Act. One of those allegations was that the Respondent has
refused to abide by the settlement of a grievance. Judge
Buschmann recommended dismissal thereof. The Board, in
the absence of exceptions to that recommendation, adopted
it pro forma. There was no issue in that case as to the matter
now before me—the alleged summary rejection of the griev-
ance procedure by the Respondent. Indeed, the General
Counsel asserts that the evidence thereon did not surface
until 1992.
Another collective-bargaining agreement was reached, ef-
fective for 3 years beginning January 1, 1992. That agree-
ment, and its predecessors, contained the following griev-
ance-arbitration provisions. It consisted of a union steward
discussing a potential grievance with a foreman. Step two in-
volved the presentation by the Union of a written grievance
to the Respondent’s production manager who must, within 10
days, hold a meeting thereon with the Union at which he will
present to the Union a written reply. Step three provided for
a meeting between the Respondent’s manufacturing manager
and other of its officials and a staff representative from the
Union’s International along with other members of its griev-
ance committee. The contract is silent as to any time limit
in which the Respondent is to provide a written step-3 an-
swer; it does provide for arbitration, if no solution is reached
within 15 days of the Union’s receipt of the Respondent’s
step-3 answer.
The Respondent pays the Union’s stewards, its officers,
and grievance committee members, all of whom are em-
ployed by the Respondent, their wages for the time they
spend in processing grievances through the steps described
above.
2. The evidence pertaining to the alleged bad-faith
bargaining
In April 1989, Richard Schutz was hired by the Respond-
ent as its manager of manufacturing. He left the Respond-
ent’s employ involuntarily in June 1991 after having been
demoted earlier that year. He testified under subpoena as a
witness called by the General Counsel as did the Respond-
ent’s former personnel manager, Linda Becker. I credit their
accounts. They impressed me as candid and forthright. For
example, Becker acknowledged that the Respondent’s presi-
dent had reason to be upset over what she felt was Schutz’
tendency to discuss at length some grievances. Further,
Schutz admitted his disappointment with the Respondent’s
rejection of him as its manufacturing manager but his de-
meanor indicated that he viewed his rejection in a mature,
nonhostile way. Their accounts disclose that, prior to
Bagnall’s arrival as president on July 31, 1989, they could
and did resolve some grievances in favor of the Union and
that there was free exchange of views at the grievance meet-
ings, some of which were too extended. Soon after Bagnall
arrived, he directed them to clear with him the answers they
were to submit to the Union at the various steps. Also, fore-
man no longer were allowed to adjust grievances at step 1.
Rather, they were required to submit written reports to the
manufacturing manager. Bagnall, dissatisfied with the num-
ber of grievances and the time spent discussing them, di-
rected Schutz and Becker to limit discussions with the Union
to an average of 5 minutes per grievance. It reached the
point where Bagnall instructed them that, in handling step-
2 grievances, they were not even to sit down but that they
were simply to hand the Union the Respondent’s written an-
swer and to leave immediately. By 1991, the written answers
the Respondent provided to the union at step 3 were identical
to those given at step 2. The Respondent’s representatives at
step 3 essentially listened to the Union’s presentations and
left without making any commitments, but at some point
later on, the Respondent gave the Union its written answer
which, as noted above, invariably denied the grievances with
language verbatim to that in the answers to step 2. There was
but one exception. Schutz testified that, as to one grievance,
he recommended to Bagnall that the Respondent made a con-
cession, to which Bagnall authorized a partial adjustment. In
doing so, Bagnall told Schutz that, if the Union rejected that
offer, he was to bury that grievance with all the other griev-
ances. Schutz’ testimony was that Bagnall was ‘‘very ada-
356 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mant . . . that time was on (the Respondent’s) side, that (the
Union will) drop more (of the grievances) than they’ll take
to arbitration . . . (that the Respondent) will beat them on
time and money.’’ Schutz’ account was to the effect that
Bagnall felt that the Union would run out of money and that
it would not get much support from its International.
Michael Berger, the staff representative of the Union’s
International, who was handling the grievances at step-3
meetings, testified credibly that, at the next to the last such
meeting he attended, he asked Schutz if he was able to settle
there and then a grievance if he, Berger, could prove that the
Union was 100-percent right. Schutz replied that they should
just continue with the grievances and that he would get back
to Berger with the answers.
Berger was replaced in July by International Staff Rep-
resentative Anthony Egnato.
On July 16, September 15, and twice in December, Egnato
and union officials met with Richard Gozigian, the Respond-
ent’s production manager. Egnato and Gozigian testified as
to those meetings. At the July 16 meeting, Egnato withdrew
the first grievance that the Union brought up. Egnato testified
that he did this in the expectation that the Respondent would
modify its approach, as it was reported to him by his prede-
cessor, Berger. Egnato then read the second grievance and
presented the Union’s contentions thereon, relying on lan-
guage in the collective-bargaining agreement. He proceeded
to read and present the Union’s position as to about 15 to
18 grievances. As to some of those grievances, Gozigian re-
sponded by stating Respondent’s contentions, which were
based on information it had obtained from its own investiga-
tions, including reports of its foreman. As to the other griev-
ances read them by Egnato. Gozigian then informed Egnato
that the Respondent would submit its step-3 answers in writ-
ing. Egnato, at one point, told Gozigian that he had authority
on beheld of the Union to settle grievances there and then.
He asked Gozigian if he had authority on behalf of the Re-
spondent to do the same. Gozigian replied that the question
was not pertinent to the discussions they were having as to
the grievances. Egnato lost his temper and later in the meet-
ing apologized for having used intemperate language in ex-
pressing his sense of frustration. The same basic format took
place at the other three step-3 meetings held in 1992. None
have been held since. Gozigian testified that the Respondent
found no merit to any of the grievances brought up at those
four meetings and had no reason to change any of its step-
2 answers thereto when it presented the Union with its step-
3 answers. With respect to the grievances discussed on July
16, Egnato wrote Gozigian on July 28 to state that he had
not received answers to those grievances; on August 16,
Gozigian wrote Egnato that they had not, on July 16, dis-
cussed the other open grievances and he advised Egnato to
call to schedule another step-3 meeting.
None of the 133 grievances filed by the Union in 1991
and 1992 was resolved in its favor and, at most, only one
of the 106 that had been filed in 1990.
As to the grievances processed in 1992, the Respondent’s
respective answers at step 2 were identical to its step-3 an-
swers to the corresponding grievance. For example, griev-
ance 449 was filed by the Union on May 1 which asserted
that the Respondent disallowed a union steward from inves-
tigating a grievance, in violation of the collective-bargaining
agreement. On May 8, Gozigian handed the Union its step-
2 answer which read, ‘‘Company is following the statutes of
the grievant procedure. Grievant has not been denied any of
his rights as steward. Grievance denied.’’ On June 2, the
Union requested a step-3 meeting thereon. On September 30,
sometime after the meeting had been held, the Respondent
gave the Union its step-3 answer to that grievance. That an-
swer was identical in wording to the step-2 answer.
In 1990, after the hearing closed in the prior case dis-
cussed above, Bagnall met with the staff representative from
the Union’s International, and with the Union’s grievance
committee. They reviewed a number of the grievances then
outstanding and reached accord thereon. The next day, how-
ever, the Union’s president disagreed with the staff represent-
ative of the International as to the terms of the settlement
reached. Since this retraction, Bagnall has not offered to
meet again with the Union.
Mickey Berger, the International staff representative, has
resumed his duties respecting the unit of employees involved
in this case. As of the date he testified at the hearing before
me, he has not participated in any further step-3 meeting
with the Respondent.
There are secondary factors to the issue of the Respond-
ent’s conduct concerning the Union’s grievances. On the one
hand, the Respondent and the Union have peacefully reached
agreement on renewal contracts in 1988 and 1991 and, in
that context, the Respondent has not sought modification of
its obligation to continue paying union officials and other
unit employees for time spent in processing grievances. On
the other hand, the Board has found, in the prior case, that
the Respondent unlawfully issued a warning to a union stew-
ard and refused to honor the Union’s request for timecards
needed for a grievance. And, as found herein, the Respond-
ent unlawfully threatened employees to bar them from pro-
testing the Respondent’s conduct as to grievance processing.
The evidence in the record as to Bagnall’s having adjusted
grievances with the Union in 1990 and the Union’s reneging
thereon can be viewed in differing ways. The Respondent’s
experience with the Union then could reasonably tend to give
the Respondent pause in adjusting the Union’s grievances.
The meeting that Bagnall conducted with the Union, how-
ever, also suggests that not all the Union’s grievances lacked
merit, as the Respondent asserts.
It is well settled that an employer is obligated under Sec-
tion 8(d) of the Act to meet with the employees’ bargaining
representative to discuss its grievances and to do so in a sin-
cere effort to resolve them. See Beverly California Corp.,
310 NLRB 222, 224 (1993). See also Storall Mfg. Co., 275
NLRB 220, 225 (1985), and Arkansas Rice Growers Assn.,
171 NLRB 75, 76 (1968).
The credited evidence is that the Respondent has barred its
foreman from making any effort to adjust a potential griev-
ance, thereby virtually having forced the Union to file a writ-
ten grievance and to go to a step-2 meeting. At that meeting,
the Respondent longer allowed for any possible give-and-
take discussion, did not even permit its representative to sit
down but required him to deliver to the Union its written re-
sponse to the grievance, again forcing the Union to proceed
to the next level. At the step-3 meeting, the Respondent’s
representative has on occasion elaborated as to the basis for
its step-2 answer but, for the most part, he listened to the
Union’s assertions and advised that an answer will be forth-
coming. At some time subsequent, the Respondent has fur-
357HOFFMAN AIR & FILTRATION SYSTEMS
nished the Union with a denial of the grievance couched in
the verbatim language with which the grievance had been de-
nied at step 2.
The credited evidence also discloses that the Respondent
has used this format in furtherance of its effort, in view of
its own resources, to bury the whole grievance procedure
bankrupting the Union’s meager treasury in arbitral expenses.
I find that such an approach by the Respondent is diamet-
rically opposed to and thus violative, of its statutory obliga-
tion to make a sincere effort to adjust the Union’s griev-
ances.
E. The Alleged Unlawful Refusal to Furnish
Information
1. As to the Sgroi grievance
The complaint originally alleged that the Union made a
written request of the Respondent for production records as
to the work to which Joseph Sgroi was assigned to perform
when he was directed to shave his face. The Union had filed
a grievance that the Respondent’s order to Sgroi was unwar-
ranted as he was then doing a job which did not require him
to wear a mask, the wearing of which required a clean-
shaven face. The Respondent’s answer to the complaint de-
nied that the Union requested those production records. The
General Counsel amended the complaint at the hearing to al-
lege that the Union’s request was made orally and offered
the testimony of the Union’s president, James Gray, in sup-
port thereof. He testified that he asked the Respondent’s pro-
duction manager, Richard Gozigian, at a step-2 meeting for
a copy of the Respondent’s respiratory program to determine
if a clean-shaven face was required for a mask to fit properly
and that he also asked for Sgroi’s timecards. He acknowl-
edged that the Respondent provided the requested copy of
the respirator program but has not responded to the request
for the timecards. The Respondent demonstrated that another
member of the Union’s grievance committee, not Gray, had
submitted a request for the respirator program and that that
request, which was honored, was in writing. Gray also had
testified that the Union’s practice was to make such requests
in writing. Gozigian denied that Gray had requested Sgroi’s
timecards. I find unpersuasive Gray’s account that he orally
requested Sgroi’s timecards and that there is, therefore, no
merit to this allegation of the complaint.
2. As to Johnson’s grievance
The Union asked for copies of certain forms, designated
as ‘‘C-2’s’’ which the Respondent filled out and sent to its
workers’ compensation insurance carrier in anticipation of
the claim later filed by Johnson. The Respondent contested
that claim. The Union’s grievance asserted, in substance, that
it needed the C-2’s as to Johnson to resolve the grievance
that the Respondent’s rejection of Johnson’s claim was viola-
tive of certain articles of the collective-bargaining agreement.
The Respondent refused to furnish to the Union the requested
C-2’s on the ground that Johnson can get them from its in-
surance company and also on the ground that, as to the
Union, the C-2’s are confidential information furnished to the
insurance company and to which the Union is thereby not
entitled to receive. I find no merit in these contentions of the
Respondent as it is obligated to furnish relevant grievance
data, see NLRB v. Acme Industrial Co., 385 U.S. 432 (1967);
and as the Respondent’s claim does not outweigh the
Union’s need for it. See Pennsylvania Power & Light Co.,
301 NLRB 1104 (1991). I thus find that the General Counsel
has shown that the Respondent has failed to meet its obliga-
tion to furnish relevant grievance data, requested by the
Union.
3. As to Casson’s grievance
The Union had asked Gozigian for copies of bids by em-
ployees for a first aid position. Gozigian testified that he told
the Union there were none. The Union then wanted to know
how Bryant, the employee in that position, had gotten that
job. Later, Gozigian located Bryant’s bid but did not give it
to the Union as the Union did not make another request
therefor. I find that the General Counsel has sustained the
burden of proving that the Respondent has failed to meet its
obligation to honor the Union’s request for copies of job bids
for that position.
4. As to head sundry clerk grievance
The Union filed a grievance seeking compensation for em-
ployees who did the work of a head sundry clerk. Gozigian
replied that, for an employee to be paid at that rate, the con-
tract required that employees must take a test to qualify.
Gray, apparently to challenge that assertion, asked for a copy
of the test. Gozigian said that he did not know if such a test
existed. Later, Gozigian was unable to find such a test but
he never told this to the Union. I find that the Respondent,
by Gozigian’s failure to respond to the Union’s request as to
whether such a test existed, failed its duty to bargain collec-
tively thereon.
F. The Alleged Unilateral Changes
1. The deferral issue
As noted earlier, the Respondent had sought to defer these
allegations to the arbitral procedures of its contract with the
Union. In view of my finding above that the Respondent has
failed in its duty to bargain collectively with the Union re-
specting the many grievances filed, deferral is unwarranted.
See Oak Cliff-Golman Baking Co., 207 NLRB 1063 (1973).
2. As to the Union’s interviewing witnesses concerning
grievances
The initial step in the grievance procedure involved a
grievant meeting with a union steward. The Respondent has
paid these employees during their meeting. On occasion, the
steward had discussed the matter with another employee or
with a union officer and again, all these employees were paid
by the Respondent for their time. In April 1992, the Re-
spondent’s manufacturing manager, Gozigian, became upset
when union officials were spending what he viewed as an in-
ordinate amount of time discussing the presence of a contrac-
tor doing repair warranty work in the building. He told them
that if they insisted on continuing, the Respondent would not
pay them for any additional time. The Union later filed a
grievance contending that the work should have been done
by a unit employee. It filed a second grievance protecting
Gozigian’s order. In later discussions on these matters,
Gozigian stated that the Union has no right under the con-
tract to interview witnesses prior to step-3 grievance meet-
358 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
ings. The Respondent asserts that it has never instituted a
rule barring a steward from talking with an employee, other
than the grievant, while investigating a grievance. The credi-
ble testimony establishes, in any event, that it was unusual
for a steward to talk with employees other than a grievant
at step 1.
I find that the evidence is insufficient to establish that the
Respondent has made a unilateral change in the grievance
procedure. This finding obviously does not pass upon the
merits of the Respondent’s contention that its allowing the
Union a reasonable time to talk with employees at other than
the grievant is not a contractual right of the Union. It is sim-
ply a finding that the Respondent has had a practice of al-
lowing the Union at step 1, a reasonable time at the Re-
spondent’s expense to investigate a grievant’s claim and that
the General Counsel has not proved a unilateral change
thereof.
3. As to the head sundry clerk wage rate
The General Counsel contends that the Respondent unilat-
erally changed the contract, which provided for a wage rate
of $12.58 an hour for a head sundry clerk, when it paid em-
ployee David Cree the sundry clerk rate of $12.47 when he
filled in for the head sundry clerk who was then on vacation.
The Respondent asserts that it has not changed the contract
rate. It appears that the individual who is classified as the
head sundry clerk receives the $12.58 rate and the sundry
clerk receives $12.47. Cree was temporarily assigned to per-
form sundry clerk duties during a plant shutdown. He was
the only such clerk then. The Respondent has had an incon-
sistent practice with respect to the wage rate paid to employ-
ees performing sundry clerk duties in such circumstances—
paying one at the head sundry clerk rate and another at the
lower rate.
I find that the evidence is insufficient to establish that the
Respondent has effected a unilateral change in the contract
wage rate.
4. As to the attendance policy
In August, an employee, Cree, was notified by the Re-
spondent that he was being charged with two violations of
its attendance policy. Apparently Cree had not called the Re-
spondent one day to notify it that he would not be at work
that day and he did not report for work that same day. The
Respondent issued him one attendance violation for not call-
ing in and another for an unexcused absence. The Respond-
ent in 1990 has issued a written attendance policy and held
a meeting with its employees then at which various questions
were raised, seeking clarification. There is conflicting testi-
mony before me as to how that policy was to be construed.
A reading of that policy sustains, in good part, the Respond-
ent’s position that an unexcused absence is to be counted as
a separate violation from failing to call in. The policy also
provides that ‘‘an occurrence’’ is a single violation, whether
one day or more.
I am unable to find from the evidence proffered by the
General Counsel that the Respondent had an established pol-
icy since 1990 whereby it charged an employee with only
one violation when that employee failed to call in on a day
to state he would not be at work and also failed to come to
work that day. Thus, the evidence is insufficient to find that
the Respondent had unilaterally changed its attendance policy
by its discipline of Cree in August.
5. As to work assignments
The General Counsel contends that the Respondent unilat-
erally modified its collective-bargaining agreement with the
Union by having used a supervisor to do unit work on over-
time instead of offering the job to employee Milton Johnson
who had been trained for that work. The work involved was
inspection work. Johnson, an assembler, had completed an
inspection training program in the 1970s and last performed
that type of work in about 1991. His name appeared on a
list of trainees for inspection work. The Respondent offered
Gozigian’s testimony that it first offered that overtime job to
its inspectors and then to those on its list of qualified inspec-
tors, all of whom declined to work overtime. Gozigian testi-
fied that, because there was an emergency, a supervisor then
did the inspecting work. In denying a union grievance as to
this job, the Respondent asserted that had fulfilled its con-
tractual obligation as all ‘‘qualified’’ employees had refused
to work overtime. It did not assert then that there had been
any emergency.
The fact that the Respondent did not offer the overtime
work to a trainee may be a contractual violation but does not
serve as a basis for finding that the Respondent unilaterally
altered any contractual provision. I, therefore, find that the
evidence is insufficient to establish that the Respondent in
September had unilaterally changed terms and conditions of
employment of the unit employees.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization as defined in Section
2(5) of the Act.
3. The Respondent has engaged in unfair labor practices
as defined in Section 8(a)(1) of the Act by:
(a) Threatening employees with discharge and other repris-
als if they engaged informational picketing to publicize the
Union’s contention that the Respondent is not processing
their grievances fairly.
(b) The conduct described in the next paragraph.
4. The Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) of the Act by having
failed to bargain collectively with the Union in the process-
ing of its grievances and in having failed to furnish informa-
tion requested and needed by the Union to process griev-
ances.
5. The Respondent has not made unilateral changes as al-
leged in the complaint or refused to honor any union request
for an employee’s timecard.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
359HOFFMAN AIR & FILTRATION SYSTEMS
3 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
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.’’
ORDER
The Respondent, Hoffman Air & Filtration Systems, a Di-
vision of Clarkson Industries, Inc., Syracuse, New York, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with discharge or other re-
prisals if they engage in informational picketing to publicize
the contention of their collective-bargaining representative
that the Respondent is not processing their grievances fairly.
(b) Failing to bargain collectively with Local Union 4496,
United Steelworkers of America, AFL–CIO in the processing
of grievances of its employees represented by the Union.
(c) Failing to honor the Union’s requests for information
necessary to processing grievances.
(d) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Furnish the Union written responses to its requests for
‘‘C-2’s,’’ bid data, and information as to the existence of a
head sundry clerk test.
(b) Bargain in good faith with the Union in processing
grievances.
(c) Post at its plant in Syracuse, New York, copies of the
attached notice marked ‘‘Appendix.’’3 Copies of the notice,
on forms provided by the Regional Director for Region 3,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER RECOMMENDED that the allegations of the
complaint that the Respondent made unilateral changes in
contract terms and the allegations that the Respondent failed
to honor the Union’s request for our employee’s timecards
are dismissed.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT threaten our employees with discharge or
other reprisals for participating in informational picketing to
publicize their collective-bargaining representative’s conten-
tion that we have been refusing to process their grievances
fairly.
WE WILL NOT refuse to honor requests by their collective-
bargaining representative for data needed to process griev-
ances.
WE WILL NOT fail and refuse to bargain in good faith with
their collective-bargaining representative in processing their
grievances.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their
rights under Section 7 of the Act.
WE WILL, in writing, furnish Local Union 4496, United
Steelworkers of America, AFL–CIO with ‘‘C-2’s,’’ job bid
data and with information as to the existence of a head sun-
dry clerk test that it requested.
WE WILL bargain in good faith with Local 4496 in proc-
essing your grievances.
HOFFMAN AIR & FILTRATION SYSTEMS, DIVI-
SION OF CLARKSON INDUSTRIES, INC.