Global Engine Manufacturing

National Labor Relations Board - Administrative Judge Opinions

Nov 5, 2009

07-CA-051933 (N.L.R.B. Nov. 5, 2009)

JD–53–09
Dundee, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
GLOBAL ENGINE MANUFACTURING
ALLIANCE, LLC
and Case 7–CA–51933
INTERNATIONAL UNION, UNITED AUTOMOBILE,
AEROSPACE AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA (UAW), AFL-CIO
Richard F. Czubaj, Esq., for the General Counsel.
K.C. Hortop & Nicole A. Flynn, Esqs. (Eastman &
Smith LTD.), of Novi, Michigan, for the Respondent.
DECISION
Statement of the Case
IRA SANDRON, Administrative Law Judge. The consolidated complaint, issued on May
28, 2009,1 arose from unfair labor practice (ULP) charges that International Union, United
Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL–CIO (the
Union) filed against Global Engine Manufacturing Alliance, LLC (Respondent or GEMA),
alleging violations of Sections 8(a)(5) and 8(a)(1) of the National Labor Relations Act (the Act).
Pursuant to notice, I conducted a trial in Detroit, Michigan, on August 27, 2009, at which
the parties had full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence. I have duly considered the helpful posthearing briefs that the General
Counsel and Respondent filed.
Issues
1. Did Respondent unlawfully fail and refuse to timely furnish the Union with relevant
information that it requested on January 8 and again on January 22?
2. Did Respondent unlawfully fail and refuse to furnish the Union with relevant
information that it requested on the above dates?
Witnesses
The General Counsel called Michael Thornton, the Union’s servicing representative for
GEMA; Respondent called Jessica Whittaker, its training and development manager and
previous labor relations (LR) supervisor.

1 All dates hereinafter occurred in 2009 unless otherwise specified.
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Most salient facts are undisputed. Both Thornton and Whittaker appeared credible, and
their testimony was generally reconcilable, for example, on what they said at their August 12
meeting. The only exception was their conflicting testimony on whether General Counsel’s
Exhibit 8 represents a grievance pending arbitration or a grievance that was previously
resolved. Such a determination is unnecessary in light of other evidence in this case.
Facts
Based on the entire record, including testimony and my observations of witness
demeanor, documents, and stipulations, I find the following.
Background
GEMA, formed as a joint venture of DaimlerChrysler, Hyundai, and Mitsubishi Motors, is
a limited-liability company with an office and place of business in Dundee, Michigan (the facility),
where it has been engaged in the manufacture, nonretail sale, and distribution of automobile
engines. Respondent has admitted jurisdiction as alleged in the complaint, and I so find.
At all times relevant, GEMA has been party to a collective-bargaining agreement with the
Union, covering a unit of its full-time and regular part-time production and maintenance
employees at the facility.2 The approximately 190 employees in the unit are skilled trades’
people, many of whom have union journeyperson cards.
Pertinent provisions of the agreement are as follows:
1. Joint Leadership Committee (p. 7–8)—includes an acknowledgement that “involving
the Union leadership in key phases of the business such as quality, continuous improvement
initiatives, operating efficiency, joint problem solving and waster elimination is extremely
important . . . . “
2. Workforce Competitiveness (pgs. 8–9)—provides that Respondent “will maintain a
core workforce of team members responsible for troubleshooting and equipment maintenance.”
It further states that Respondent can utilize an outside contractor (“supplemental service
provider” (supplemental employer aka embedded employer), “whose major role is to support the
needs of the team to perform maintenance activities, non-standard work as well as replacing
GEMA employees absent from work for such events as training, vacation, benchmarking trips,
customer/vendor visits etc.”
3. Clarification and Discussion Resolution Process (CDRP) (grievance procedure) (pgs.
10–11)—sets out three steps, the final being arbitration.
4. Layoff and Recall (pgs. 13–14)—as to both involuntary short-term and indefinite
layoffs, all supplemental employees are to be laid off first, followed by all probationary
employees, and then employees in order of seniority.
The agreement contains no provision limiting Respondent’s ability to use supplemental
employers to perform work based on cost effectiveness vis-à-vis unit employees. Whittaker,
who attended negotiations, did not recall if the specific subject was raised. Thornton testified
that the Union’s position is that the contract bars GEMA from using supplemental employees

2 GC Exh. 2.
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when they cost more than unit employees.
Respondent has utilized supplemental employees from a number of supplemental
employers, most significantly, Intra (gauge work), Mahrhar (quality work), Premier (skilled trades
work), and Syncreon (materials handling).
The Union’s Requests for Information (RFI’s)
By letter of January 8 to then HR Director Carol Kennedy, Thornton made an RFI,
preliminarily stating, in sum, that a grievance had been filed under the workforce
competitiveness and layoff and recall provisions of the collective-bargaining agreement.3 He
testified that he needed the information in order to determine Respondent’s monetary liability to
employee-grievants.
He went on to request information from July 4, 2005 to the present in three categories.
Paragraph I concerned unit employees laid off and recalled. He requested:
A. The date the person was initially employed.
B. The date(s) the employee was laid off and the reason.
C. The department(s) involved in the layoff.
D. The manner in which the employee was recalled.
E. Each employee laid off and/or recalled, with the reason the person was chosen for
layoff or recall, and the name of the person who made the decision to layoff or recall.
F. The proportion of salary (nonrepresented) employees laid off to unit employees laid
off.
G. A list of qualifications and descriptions for all job classifications.
H. A copy of all policies or procedures regarding employment of employees.
I. A copy of any employer policies and procedures regarding layoffs and recalls; and
J. A copy of any and all written agreements related to layoff and recall.
Paragraph II pertained to any supplemental employee employed, laid off and recalled.
Thornton asked for the following:
A. A list of all individuals hired as supplemental employees, giving the employer,
employee name, date of hire, length of service, rate of pay, classification, and date of
any and all layoffs and/or recalls.
B. Supporting documentation such as hours worked, appropriate payroll records,
production/records and/or other documentation revealing layoff and recall.
C. A copy of all company policies and procedures regarding the hiring of supplemental
employees.
D. The complete list of all supplemental providers, including their names, addresses,
nature of service provided, and a copy of any contract and/or agreement.
E. For each item described above, a statement including the costs of labor, parts,
service, general administrative costs and all other costs associated with the
supplemental employer.
F. Copies of all correspondence, including written, electronic and other to and from all
supplemental employers regarding layoff and recall; and

3 GC Exh. 3. June 9 was Kennedy’s last working day at the facility. After that date, all
correspondence was between Thornton and Whittaker.
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G. The names of any and all supplemental employees subsequently hired by GEMA,
date of hire, department, and all criteria used to make the determination to hire.
Paragraph 3 related to training programs. Inasmuch as the General Counsel is not
contending that Respondent committed any ULP in its response to this portion of the Union’s
information request, I need not describe it in detail.
By letter of January 22, Thornton made a second, identical RFI.4 This may have been
faxed or hand-served as well as mailed, because Kennedy acknowledged receipt of both
requests in a letter of January 22, wherein she stated that Respondent was reviewing the
requests and would “respond shortly.”5
On about January 30, Kennedy sent another letter, in which she stated that Respondent
was in the process of gathering documents, asked Thornton to identify the particular CDRP to
which the request pertained, and requested clarification/explanation of a number of items in his
RFI.6 As to paragraph II, she asked him to identify supplemental employers to which the
request related. She also questioned the relevance of Items I-F, 1-G, II-E, and II-G. She further
said that gathering some of the information would take a “significant period or time” and that
Respondent did not have some of the requested information.
By letter of February 12, Thornton responded to her requests for clarification/explanation
on an item-by-item basis.7 Although he did not identify a specific CDRP, his response to the
relevance of I-G was “As stated in the grievance, the Union alleges the company is in violation
of the CBA by working supplemental service employees on work which GEMA employees
should be performing.”
By letter of March 26, Kennedy pointed out that Thornton had not identified the particular
CDRP but that she was nevertheless providing information.8 She proceeded to give information
regarding I-A through I-J. Attachments included a list of unit employees laid off (six pages),
team leader position descriptions, standards of conduct, and employees who went through
training programs (seven pages).
As to paragraph II, she stated that the supplemental employers maintained their own
personnel records and any requests had to be made separately to each of them. She went on
to say that Respondent did not maintain the information in II-A—D or F, II-E was “vague and
unclear,” and there were no known records relevant to II-G. By letter of May 19, Kennedy
furnished a more comprehensive list of laid-off unit employees.9
Shortly after Whittaker became acting LR head on about June 9, she called Thornton
and advised him of this. She brought up the outstanding RFI and suggested that they walk
through it. A couple of weeks later, they had another telephone call. Therein, he stated that in
Item II-D, he meant contracts between GEMA and its SSP’s, not between the supplemental
employers and labor organizations. When she questioned the need for such contracts and for
cost data (II-E) to ascertain what work was done, he replied that he wanted to be able to

4 GC Exh. 4.
5 R Exh. 1.
6 GC Exh. 5.
7 GC Exh. 6.
8 GC Exh. 7.
9 R. Exh. 2. The full attachment was 73 pages.
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compare what it cost GEMA to use supplemental employees as opposed to unit employees, and
specified Premier, Intra, Mahrhar, and Sycreon. Whittaker replied that aside from relevance, the
information was proprietary in nature.
Whittaker testified that her understanding is that GEMA’s purchase agreements with
supplemental employers prohibit the disclosure of their terms to third parties. However,
Respondent provided no documentary evidence to confirm this, either to the Union or at trial.
In this or their following conversation, Whittaker asked to which particular grievance the
information pertained. Thornton responded that it related to grievances on supplemental
employees performing unit work. In one or both conversations, he expressed skepticism over
Respondent’s claim that it did not maintain the information requested in II-A–D.
The parties stipulated that on July 6, Respondent provided the information in paragraphs
II-A, C, and G.10 By e-mail of July 8, Whittaker also provided Thornton with an alphabetized list
of supplemental employers—partially responding to II-D.11
On the afternoon of August 12, Thornton met with Whittaker in her office, concerning the
three items that remained open (II-B, D, and F). As to II-B and F, they agreed that Whittaker
would start with Premier and see what she could obtain concerning the type of work it provided
and how many hours its employees worked during the past year when GEMA employees were
on layoff. Regarding II-D, Whittaker repeated that the information was proprietary. Thornton
offered her a confidentiality agreement.
Inasmuch as the meeting occurred about 2 weeks prior to the scheduled trial, it arguably
constituted a settlement discussion, but no party has asserted such. In any event, Respondent
provided no additional information to the Union between August 12 and the trial.
It is undisputed that there are pending grievances regarding the layoff of unit employees
while supplemental employees are working—at least two at the third step of the grievance
procedure (arbitration), and 5–10 at the second step. In addition to citing the layoff provision in
the parties’ agreement, some may aver other contractual violations, such as the joint leadership
committee article.
Analysis and Conclusions
The governing principle is that an employer is obliged to supply information requested by
a collective-bargaining representative that is necessary and relevant to the latter’s performance
of its responsibilities to the employees it represents, NLRB v. Acme Industrial Co., 385 U.S. 432
(1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956), and in a timely fashion. Beverly
Enterprises, 326 NLRB 153, 157 (1991); Interstate Food Processing, 283 NLRB 303, 306
(1987).
To the extent that Respondent’s defenses contending lack of relevance are inconsistent
with its prior conduct, I cannot consider such defenses bona fide. I will address this further in
my discussion of II-D.

10 See R. Exh. 3, a series of e-mails between Thornton and Whittaker.
11 R. Exh. 4.
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The General Counsel contends that Respondent furnished the following information in a
dilatory manner:
Paragraph I (GEMA employees): B—date or dates GEMA employees laid off and the
reasons; C—the department(s) involved in the layoff; E—each employee laid off and/or recalled,
the reason chosen, and the name of the person who made the decision; and G—list of all
qualifications and descriptions for all job classifications.
Paragraph II (supplemental employees): A—list of all individuals hired as supplemental
employees, with name, employer, date of hire, length of service, rate of pay, classification, and
date of any and all layoffs and/or recalls; C—a copy of all company policies and procedures for
the hiring of supplemental employees; and G—the names of any and all supplemental
employees that GEMA subsequently hired, date of hire, department, and all criteria used to
make the determination to hire.
A union is entitled to relevant information at the time of its request. Woodland Clinic,
331 NLRB 735, 736 (2000) (7–week delay unlawful); Pennco, Inc., 212 NLRB 677, 678 (1974)
(6–week delay a violation). The standard is not the length of time alone. Rather, in evaluating
whether a response was untimely, the Board looks at the totality of circumstances, including the
complexity and extent of the information sought, its availability, and the difficulty in its retrieval.
West Penn Power Co., 339 NLRB 585, 587 (2003), enforcd. in part 394 F.3d 233 (4th Cir.
2005); Samaritan Medical Center, 319 NLRB 392, 398 (1995). The ultimate determination is
whether a respondent made “a reasonable good faith effort to respond to the request as
promptly as circumstances allow.” West Penn Power, ibid, quoting Good Life Beverage Co.,
312 NLRB 1060, 1062 fn. 9 (1993).
On February 12, Thornton responded to Kennedy’s request for clarification/explanation
of various items. On March 26, or about 6 weeks later, Kennedy provided most of the
information the Union had requested in paragraph I, and she supplemented it on May 19 with a
73-page list of laid off employees. Clearly, not all of the information sought in paragraph I was
simple, short, or capable of immediate ascertainment. The General Counsel does not
specifically argue that GEMA’s responses to paragraph I were defective as far as completeness.
Taking all of these factors into account, I conclude that Respondent did not untimely furnish the
information as to paragraph I.

In her January 30 letter requesting clarification/explanation, Kennedy asked nothing
specifically about paragraph II-A or II-C but sought an explanation of the relevance of II-G.
Thornton’s February 12 letter addressed the latter by stating that the Union wanted to identify if
GEMA had hired employees from the ranks of any supplemental employers and, if so, whether
there were any cost savings. In her March 26 letter, Kennedy stated that Respondent did not
maintain information responsive to II-A and II-C and had no documents responsive to II-G.
However, on July 6, Respondent provided information to the Union on all three matters.
A fortiori, Respondent did have a means of obtaining such information, contrary to
Kennedy’s March 26 letter stating that GEMA either did not maintain or had no responsive
information to the three items. Respondent has not advanced any satisfactory explanation for
why it did not provide the information on II-A, II-C, and II-G until nearly 5 months after
Thornton’s clarified request. I also note that the entire information request related to grievance
processing, and Thornton’s testimony that he sought the information to determine what the
Union should seek as monetary compensation for grievants. The normal presumption is that
employee-grievants desire that their cases be resolved as early as possible, a goal jeopardized
by an unjustified delay in an employer’s compliance with a union’s information request.
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Accordingly, in all the circumstances, I conclude that Respondent violated Section
8(a)(5) and (1) by not timely furnishing the Union with the information it requested in paragraph
II-A, C, and G.
The General Counsel avers, and it is uncontroverted, that Respondent has failed and
refused to provide information for II-B—supporting documentation, such as payroll records,
regarding the layoffs and recalls of supplemental employees; II-D—addresses of supplemental
employers, the nature of service provided, and a copy of any contract and/or agreement; and II-
F—copies of all correspondence to and from all supplemental employers regarding layoff and
recall.
As opposed to II-D, neither Kennedy nor Whittaker ever asserted to Thornton that the
information sought in II-B and II-F was irrelevant or proprietary, confidential, or otherwise not
properly disclosed to the Union. Indeed, Whittaker said on August 12 that she would try to get
pertinent information from Premier—an indirect concession of the information’s relevance and of
Respondent’s not having made attempts to obtain it. Respondent has not shown good cause
for why the information in II-B and II-F has not been provided as of over 6 months from the
clarified request, and I conclude that it thereby violated Section 8(a)(5) and (1) of the Act.
In light of the fact that Respondent furnished the information for II-A, C, and G and
stipulated that the information sought therein was relevant; agreed in principle to furnish
information for II-B and F; and, most significantly, has already provided an alphabetized list of
supplemental employers, partially responding to II-D, I reject its inconsistent argument that
paragraph II-D requested irrelevant information.
Finally, Respondent has contended that the information sought in II-D is proprietary or
confidential as far as requesting copies of contracts that GEMA has with supplemental
employers.
When a collective-bargaining relationship exists, a party refusing to furnish requested
information on the basis of confidentiality must initially show that it had a legitimate and
substantial confidentiality interest in the information sought. Northern Indiana Public Service
Co., 347 NLRB 210, 211 (2006); Pennsylvania Power Co., 301 NLRB 1004, 1005 (1991).
If this showing is met, the Board must weigh the party’s interest in confidentiality against the
requester’s need for the information, and such balance must favor the party asserting
confidentiality. Detroit Edison Co. v. NLRB, 440 U.S 301 (1979); Detroit Newspaper Agency,
317 NLRB 1071, 1074 (1995). Finally, even if these conditions are met, the party may not
simply refuse to provide the information but must seek an accommodation that will allow the
requester to obtain the information it needs while protecting the party’s interest in confidentiality.
Borgess Medical Center, 342 NLRB 1105, 1106 (2004); Metropolitan Edison Co., 330 NLRB
107, 107 (1999).
Although Respondent has claimed that provisions in its contracts with supplemental
employers bar it from disclosing their contents, Respondent has not provided evidence of such
either to the Union or at trial. Even assuming Respondent has met the first two requirements
above, it never sought an accommodation, such as obtaining releases from the supplemental
employers, limiting disclosure to selected portions of the agreements, or sanitizing names.
Indeed, Thornton was the one who suggested that the Union sign a nondisclosure agreement
as a means of allaying Respondent’s concern over confidentiality. In any event, even if
Respondent was privileged to withhold the contracts themselves, no such privilege would
extend to other requested information in II-D, to wit, addresses, and the nature of service
provided.
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Therefore, I conclude that Respondent further violated Section 8(a)(5) and (1) by not
providing the information requested in paragraph II-B, D, and F.
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 meaning of Section 2(5) of the Act.
3. By untimely furnishing certain information that the Union requested and by failing
and refusing to furnish certain other requested information, Respondent engaged in unfair labor
practices affecting commerce within the meaning of Section 2(6) and (7) of the Act and violated
Section 8(a)(5) and (1) of the Act.
Remedy
Because I have found that the Respondent has engaged in certain unfair labor practices,
I find that it must be ordered to cease and desist and to take certain affirmative action designed
to effectuate the policies of the Act.
On these findings of fact and conclusions of law, and on the entire record, I issue the
following recommended12
ORDER
Respondent, Global Engine Manufacturing Alliance, LLC, Dundee, Michigan, and its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to timely furnish all information the Union requests that is
necessary and relevant for the Union’s performance of its duties as the exclusive collective-
bargaining representative of unit employees.
(b) In any like or related manner interfering with, restraining, 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) Furnish the Union with all remaining information that it requested on January 8 and
15, 2009, as clarified on February 12, 2009, unless the Union agrees to modify its requests.
(b) Within 14 days after service by the Region, post at its Dundee, Michigan facility
copies of the attached notice marked “Appendix.”13 Copies of the notice, on forms provided by
the Regional Director for Region 7, after being signed by Respondent’s authorized

12 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in
Section 102.48 of the Rules, be adopted by the Board and all objections to them shall
be deemed waived for all purposes.
13 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
Continued
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representative, shall be posted by Respondent 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 Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, Respondent has gone out of business or closed the facility involved in these
proceedings, Respondent shall duplicate and mail, at its own expense, a copy of the notice to all
current and former employees of Respondent at any time since January 8, 2009.
(c) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps
that Respondents have taken to comply.
The complaint is dismissed insofar as it alleges violations of the Act that I have not
specifically found.
Dated, Washington, D.C. November 5, 2009.

____________________
IRA SANDRON
Administrative Law Judge
_________________________
“Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.”
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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 Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
International Union, United Automobile, Aerospace and Agricultural Implement Workers of
America (UAW), AFL-CIO (the Union) is the certified bargaining representative of full-time and
regular part-time production and maintenance employees at our Dundee, Michigan, facility (unit
employees).
WE WILL NOT fail to timely provide or refuse to provide the Union with information it requests
that is relevant and necessary to its role as the exclusive bargaining representative of unit
employees, including its processing of grievances of unit employees.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of your rights under Section 7 of the National Labor Relations Act, as set forth at the
top of this notice.
WE WILL provide the Union with all of the information it has requested since on about January
8, 2009, as clarified on February 12, 2009, relating to grievances concerning our use of
supplemental service providers in relation to the layoffs and recalls of unit employees, unless
the Union agrees to modify its requests.
GLOBAL ENGINE MANUFACTURING
ALLIANCE, LLC
Employer
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
477 Michigan Avenue, Federal Building, Room 300
Detroit, Michigan 48226-2569
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Hours: 8:15 a.m. to 4:45 p.m.
313-226-3200.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 313-226-3244.