Leach Corp.

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 990 (N.L.R.B. 1993)

990
312 NLRB No. 146
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Sec. 10(b) states in pertinent part that ‘‘[N]o complaint shall
issue based on any unfair labor practice occurring more than six
months prior to the filing of the charge with the Board.’’
2 On April 1, 1993, Administrative Law Judge James L. Rose
issued the attached decision. The General Counsel, the Charging
Party, and the Respondent filed exceptions and supporting briefs (in-
cluding a supplemental supporting brief filed by the Charging Party),
the Respondent filed a brief in support of the judge’s decision and
a brief in response to the Charging Party’s exceptions, and the Gen-
eral Counsel and the Charging Party filed briefs in response to the
Respondent’s exceptions.
The National Labor Relations Board has considered the decision
and the record in light of the exceptions and briefs and has decided
to affirm the judge’s rulings, findings, and conclusions only to the
extent consistent with this Decision and Order.
3 In sec. III,B,2 of his decision, the judge also found that the Re-
spondent violated Sec. 8(a)(5) and (1) as alleged in Case 21–CA–
28385 by refusing to provide the Union with certain requested infor-
mation. Although there are no exceptions to this finding, and we af-
firm it, the facts on which it is based are set forth infra because they
are also relevant to the issue of whether the judge correctly deter-
mined that the Union’s contract repudiation—withdrawal of recogni-
tion charge in Case 21–CA–28475—was not timely filed under Sec.
10(b).
4 The judge discusses these background matters in greater detail,
in the first several paragraphs of sec. III,A of his decision.
5 All the following dates are in 1991, unless stated otherwise.
6 The Union did not at that time represent any of the employees
already working at Buena Park in other divisions.
Leach Corporation and International Association of
Machinists and Aerospace Workers, District
Lodge 94, Local Lodge 102, AFL–CIO. Cases
21–CA–28385 and 21–CA–28475
September 30, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
There are two principal issues in this case. The first
is whether the judge correctly determined that the com-
plaint allegations predicated on the Union’s January
21, 1992 unfair labor practice charge in Case 21–CA–
28475 (as amended on April 6, 1992), alleging that the
Respondent violated Section 8(a)(5) and (1) of the Act
by repudiating its collective-bargaining agreement
with, and withdrawing recognition from, the Union,
were time-barred under Section 10(b).1 The second
issue is whether the judge correctly determined that ab-
sent the 10(b) bar, the Respondent would have violated
the Act by repudiating the collective-bargaining agree-
ment and withdrawing recognition.2
For the reasons set forth below, we do not agree
with the judge that the contract repudiation and with-
drawal of recognition allegations are time-barred. With
respect to the merits, we agree with the judge, for the
reasons set forth in his decision, that the Respondent
was obligated to adhere to the collective-bargaining
agreement and recognize the Union.
I. FACTS
The facts are fully set forth by the judge. They are
essentially as follows.3
The Respondent and the Union were parties to a col-
lective-bargaining agreement covering the production
and maintenance employees at the Respondent’s Los
Angeles Relay Division (LARD) for the period Octo-
ber 1, 1988–October 22, 1991.
During 1990, the Respondent studied the feasibility
of changing from a ‘‘batch’’ method of production to
a ‘‘world class manufacturing just-in-time’’ (just-in-
time) method of production. Spatially, however, the
Los Angeles facility could not accommodate the con-
templated just-in-time method, and the Respondent was
also considering relocating the Los Angeles Relay Di-
vision to its Buena Park facility, which could accom-
modate the just-in-time method.4
On February 1, 1991,5 the Respondent notified the
Union that it had decided to close permanently the Los
Angeles plant and to relocate the LARD operations to
Buena Park. The Respondent told the Union that it an-
ticipated that the closure and relocation would begin in
July and be completed on September 15.
On March 20, the parties met for the first time to
discuss this matter. The Respondent stated that it con-
sidered the Buena Park facility to be a new and dif-
ferent operation from LARD, to be laid out in a just-
in-time mode, requiring different employee skills, du-
ties, and classifications, for which LARD employees
relocating to Buena Park would have to be retrained.
At this meeting, and at subsequent meetings on April
23 and May 14, the Union requested that the Respond-
ent recognize it as the representative of the LARD em-
ployees relocating to Buena Park and that it apply the
LARD collective-bargaining agreement to cover those
employees on their relocation to Buena Park.6 On all
three occasions, the Respondent refused to recognize
the Union or apply the collective-bargaining agreement
at Buena Park.
On June 21, the Union asked in writing that the Re-
spondent provide it with, inter alia, the names of
LARD employees who were going to be relocated to
Buena Park ‘‘as of the first week in July 1991, or on
or about that time,’’ and the names of the departments
and positions to which those employees would be relo-
cated at Buena Park. The Respondent denied this re-
quest for information on June 26.
The actual relocation of LARD employees to Buena
Park began on July 3 and was completed about Sep-
tember 17. Approximately 280 of the 340 LARD unit
employees relocated to Buena Park. Generally, each re-
locating employee was terminated at LARD by the Re-
spondent on a Friday and then rehired at Buena Park
by the Respondent on the following Monday. The first
day of actual relocation of employees, however, was a
Wednesday, July 3. On that date, about 35 LARD em-
991LEACH CORP.
7 See also NLRB v. Electrical Workers IBEW Local 112, 827 F.2d
530 (9th Cir. 1987); Teamsters Local 42 v. NLRB, 825 F.2d 608,
615–616 (1st Cir. 1987).
Thus, in agreement with the judge, we reject the Respondent’s
contention that the 10(b) period began to run in mid-May when the
Respondent stated that it did not intend to apply the collective-bar-
gaining agreement or recognize the Union at the Buena Park facility.
The Respondent’s reliance on Postal Service Marina Center, 271
NLRB 397 (1984), in support of its argument in this regard is mis-
placed. The 10(b) standard that was employed in Postal Service ap-
plies to discriminatory discharge cases, but not to situations like
those at issue here, involving contract repudiation and refusal to bar-
gain. United States Can Co., 305 NLRB 1127, 1141 (1992), enfd.
142 LRRM 2313 (7th Cir. 1993). See generally Howard Electrical
& Mechanical, 293 NLRB 472, 475 (1989).
ployees relocated to Buena Park. Significantly, the
record does not otherwise show how many employees
were relocated on any particular date. When the relo-
cation was completed in mid-September, the new
Buena Park work force engaged in relay manufacturing
was made up entirely of former LARD unit employees.
On August 6, the Union asked in writing that the
Respondent provide it with the names of LARD em-
ployees who had been relocated to the Buena Park fa-
cility, and the names of their new departments and
classifications. The Union did not receive a response
to this request.
The Respondent and the Union met again on Sep-
tember 17. The Union inquired as to the nature of the
work being performed and the product being manufac-
tured at Buena Park, asserting to the Respondent that
such information was relevant to the Union’s ability
effectively to represent the LARD employees who
were affected by the relocation of operations to Buena
Park. The Respondent declined to furnish this informa-
tion. The Union asked the Respondent to recognize it
as the representative of the production employees at
Buena Park. The Respondent refused to do so.
On November 21, the Union filed the refusal-to-pro-
vide-information unfair labor practice charge in Case
21–CA–28385. On January 21, 1992 (as amended
April 6, 1992), the Union filed the contract repudi-
ation—withdrawal of recognition charge in Case 21–
CA–28475.
II. THE JUDGE’S DECISION
The judge found that the unfair labor practices al-
leged in the charge in Case 21–CA–28475 (i.e., the
Respondent’s refusal to recognize the Union as the
representative of the former LARD unit employees
who had relocated to Buena Park, and its failure to
apply the Relay Division collective-bargaining agree-
ment to them) occurred for 10(b) purposes when the
first group of unit employees actually relocated to
Buena Park on July 3, more than 6 months prior to the
January 21, 1992 filing of the charge. For the reasons
discussed below, we disagree with the judge on this
question, and we find under the circumstances of this
case that the Respondent has failed to satisfy its bur-
den of showing that the Union had notice of a viola-
tion of the Act more than 6 months prior to the filing
of the charge in Case 21–CA–28475.
III. DISCUSSION
Our disagreement with the judge is a narrow one be-
cause we agree with his recitation of the relevant legal
principles. As noted by the judge, it is well established
that ‘‘a statement of intent or threat to commit an un-
fair labor practice does not start the statutory six
months running. The running of the limitations period
can begin only when the unfair labor practice occurs.’’
NLRB v. Al Bryant, Inc., 711 F.2d 543, 547 (3d Cir.
1983).7 It is also firmly established that the 10(b) pe-
riod commences only when a party has clear and un-
equivocal notice of a violation of the Act. E.g., Desks,
Inc., 295 NLRB 1, 11 (1989). ‘‘Further, the burden of
showing such clear and unequivocal notice is on the
party raising the affirmative defense of Section 10(b).’’
Chinese American Planning Council, 307 NLRB 410
(1992).
In applying these principles here, we cannot agree
with the judge that the Charging Party had knowledge
of the facts necessary to support a ripe unfair labor
practice charge on July 3, when the Respondent began
to relocate employees to Buena Park. Under the
Board’s decision in Harte & Co., 278 NLRB 947
(1986), a case cited by the judge, the Respondent
would be obligated to recognize the Union at Buena
Park and apply the existing contract only if, inter alia,
‘‘transferees from the old plant constitute a substantial
percentage—approximately 40 percent or more—of the
new plant employee complement’’ on ‘‘the date that
the transfer process was substantially completed.’’ Id.
at 948, 949 (emphasis in original). As of the July 3
date the judge selected, the transfer process was not
‘‘substantially completed.’’ Rather, the process had
just begun with the relocation of the first wave of ap-
proximately 35 employees. Accordingly, it was an
error for the judge to conclude that on July 3 ‘‘suffi-
cient facts were in existence to sustain a finding of an
unfair labor practice.’’
Indeed, on this record, the earliest date that the
Union can be charged with knowledge of a violation
of the Act is September 17, a date well within the
10(b) period. This is so because the record shows only
that the initial 35 employees were relocated on July 3
and that the relocation process was completed on Sep-
tember 17 with approximately 280 former LARD em-
ployees comprising the new Buena Park relay manu-
facturing work force. The record does not reveal how
many employees had been relocated at any point in
time after the July 3 start until the September 17 com-
pletion of the process. As the party with the burden on
992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Lack of clear and unequivocal knowledge by the Union of the
unfair labor practices prior to September 17 is not attributable to any
lack of diligence on the part of the Union in seeking relevant infor-
mation about the relocation. Rather, it is at least partly attributable
to the Respondent’s unlawful refusal to provide the Union with the
relevant information about the relocation that it requested during the
period leading up to and during the relocation.
9 There is no contention that the April 6, 1992 amended charge
should be found to be untimely even if the January 21, 1992 initial
charge is found to be timely. We agree with the judge that these two
aspects of the case are intertwined, i.e., the repudiation of the con-
tract and the refusal to recognize the Union are part and parcel of
each other, coincident to the relocation of relay manufacturing oper-
ations from LARD to Buena Park. Kelly–Goodwin Hardwood Co.,
269 NLRB 33, 36–37 (1984).
the 10(b) issue, the Respondent must be held account-
able for this gap in the record.
In sum, the Respondent has failed to carry its bur-
den of showing that the Charging Party had notice that
a violation of the Act occurred before July 21, the be-
ginning of the 10(b) period. On this record, September
17 is the earliest date on which the Union can be
found to have had clear and unequivocal notice that
Harte’s substantial-percentage-of-transferees require-
ment had been fulfilled.8 The Union filed its charge in
Case 21–CA–28475 on January 21, 1992, alleging un-
lawful refusal to recognize the Union at Buena Park,
and filed its amended charge in that case on April 6,
1992, additionally alleging unlawful contract repudi-
ation at Buena Park. September 17 is, of course, within
the 6-month period prior to the January 21, 1992 filing
of the charge.9 Accordingly, we find, contrary to the
judge, that the Union’s charge in Case 21–CA–28475
was timely filed and that the allegations in that case
are not barred by Section 10(b). Because we agree
with the judge, for the reasons set forth in his decision,
that on the merits the Respondent’s conduct violated
Section 8(a)(5) and (1) of the Act, we shall issue an
appropriate remedial Order.
CONCLUSIONS OF LAW
1. At all times material, the Union has been the ex-
clusive collective-bargaining representative within the
meaning of Section 9(a) of the Act of the Respond-
ent’s production and maintenance employees engaged
in the manufacture of relays, as further described in ar-
ticle II, Recognition, of the October 1, 1988–October
22, 1991 collective-bargaining agreement between the
Respondent and the Union.
2. By failing and refusing to provide the Union with
certain requested information relevant to the Union’s
representation for collective-bargaining purposes of the
employees described above, the Respondent has en-
gaged in an unfair labor practice in violation of Sec-
tion 8(a)(5) and (1) of the Act.
3. By failing and refusing to apply the above-men-
tioned collective-bargaining agreement to unit employ-
ees on their relocation from LARD to the Buena Park
facility, the Respondent has engaged in an unfair labor
practice in violation of Section 8(a)(5) and (1) of the
Act.
4. By failing and refusing to recognize the Union as
the exclusive collective-bargaining representative of
the unit employees on their relocation from LARD to
the Buena Park facility, the Respondent has engaged in
an unfair labor practice in violation of Section 8(a)(5)
and (1) of the Act.
5. These unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order that it
cease and desist and take certain affirmative action de-
signed to effectuate the policies of the Act.
Specifically, we shall order the Respondent to pro-
vide the Union with the requested information. We
shall also order the Respondent to apply the October
1, 1988–October 22, 1991 collective-bargaining agree-
ment between the Respondent and the Union to the
production and maintenance employees engaged in the
manufacture of relays at the Respondent’s Buena Park
facility, as further described in article II, Recognition,
of that agreement. Additionally, we shall order the Re-
spondent to recognize the Union as the exclusive col-
lective-bargaining representative of the production and
maintenance employees engaged in the manufacture of
relays at the Respondent’s Buena Park facility, as fur-
ther described in article II, Recognition, of the above-
mentioned collective-bargaining agreement. Finally, we
shall order the Respondent to make the above-de-
scribed employees whole for any loss of earnings and
other benefits suffered as a result of the Respondent’s
unlawful refusal to apply the above-mentioned collec-
tive-bargaining agreement to them. Any amounts of
money necessary to make employees whole under the
terms of this remedy shall be computed in accordance
with Ogle Protection Service, 183 NLRB 682 (1970),
with interest computed in accordance with New Hori-
zons for the Retarded, 283 NLRB 1173 (1987). Noth-
ing in the Order shall be construed as requiring the Re-
spondent to rescind any wage increases or other im-
proved benefits or terms or conditions of employment
which may have been afforded to the employees in
question since their relocation to the Buena Park facil-
ity without a request from the Union.
ORDER
The National Labor Relations Board orders that the
Respondent, Leach Corporation, Los Angeles and
Buena Park, California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
993LEACH CORP.
10 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.’’
(a) Refusing to provide International Association of
Machinists and Aerospace Workers, District Lodge 94,
Local Lodge 102, AFL–CIO (the Union) with re-
quested information that is relevant and necessary to
the Union’s collective-bargaining representation of the
employees of the Respondent.
(b) Refusing to apply the October 1, 1988–October
22, 1991 collective-bargaining agreement between the
Respondent and the Union to the production and main-
tenance employees engaged in the manufacture of re-
lays at the Respondent’s Buena Park facility, as further
described in article II, Recognition, of that agreement.
(c) Refusing to recognize the Union as the exclusive
collective-bargaining representative of the production
and maintenance employees engaged in the manufac-
ture of relays at the Respondent’s Buena Park facility,
as further described in article II, Recognition, of the
the October 1, 1988–October 22, 1991 collective-bar-
gaining agreement between the Respondent and the
Union.
(d) 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) On request, provide the Union with information
that is relevant and necessary to the Union’s collective-
bargaining representation of the employees of the Re-
spondent.
(b) Apply the October 1, 1988–October 22, 1991
collective-bargaining agreement between the Respond-
ent and the Union to the production and maintenance
employees engaged in the manufacture of relays at the
Respondent’s Buena Park facility, as further described
in article II, Recognition, of that agreement.
(c) Recognize the Union as the exclusive collective-
bargaining representative of the production and mainte-
nance employees engaged in the manufacture of relays
at the Respondent’s Buena Park facility, as further de-
scribed in article II, Recognition, of the October 1,
1988–October 22, 1991 collective-bargaining agree-
ment between the Respondent and the Union.
(d) Make the above employees whole, in the manner
prescribed in the remedy section of this decision, for
any loss of earnings and other benefits suffered as a
result of the Respondent’s unlawful refusal to apply
the above-mentioned collective-bargaining agreement
to them; provided, however, that nothing herein shall
be construed as requiring the Respondent to rescind
any wage increases or other improved benefits or terms
or conditions of employment which may have been af-
forded to the employees in question since their reloca-
tion to the Buena Park facility without a request from
the Union.
(e) Preserve and, on request, make available to the
Board or its agents for examination or copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Post at its Los Angeles and Buena Park, Califor-
nia, facilities copies of the attached notice marked
‘‘Appendix.’’10 Copies of the notice, on forms pro-
vided by the Regional Director for Region 21, after
being signed by the Respondent’s authorized represent-
ative, shall be posted by the Respondent immediately
upon receipt 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 no-
tices are not altered, defaced, or covered by any other
material.
(g) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to provide International Asso-
ciation of Machinists and Aerospace Workers, District
Lodge 94, Local Lodge 102, AFL–CIO (the Union)
with requested information that is relevant and nec-
essary to its collective-bargaining representation of our
employees.
WE WILL NOT refuse to apply the October 1, 1988–
October 22, 1991 collective-bargaining agreement be-
tween us and the Union to the production and mainte-
nance employees engaged in the manufacture of relays
at our Buena Park facility, as described in the recogni-
tion clause of that agreement.
WE WILL NOT refuse to recognize the Union as the
exclusive collective-bargaining representative of the
production and maintenance employees engaged in the
manufacture of relays at our Buena Park facility, as
described in the recognition clause of the the October
1, 1988–October 22, 1991 collective-bargaining agree-
ment between us and the Union.
994 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1991 unless otherwise indicated.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL, on request, provide the Union with infor-
mation that is relevant and necessary to its collective-
bargaining representation of our employees.
WE WILL apply the October 1, 1988–October 22,
1991 collective-bargaining agreement between us and
the Union to the production and maintenance employ-
ees engaged in the manufacture of relays at our Buena
Park facility, as described in the recognition clause of
that agreement.
WE WILL recognize the Union as the exclusive col-
lective-bargaining representative of the production and
maintenance employees engaged in the manufacture of
relays at our Buena Park facility, as described in the
recognition clause of the the October 1, 1988–October
22, 1991 collective-bargaining agreement between us
and the Union.
WE WILL make the above employees whole for any
loss of earnings and other benefits suffered as a result
of our refusal to apply the above-mentioned collective-
bargaining agreement to them.
LEACH CORPORATION
Paul H. Fisch, Esq., for the General Counsel.
William H. Emer, Esq., and Kelly F. Watson, Esq., of Los
Angeles, California, for the Respondent.
Herbert M. Ansell, Esq., of Los Angeles, California, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. These consoli-
dated cases were tried before me on various days from No-
vember 3 through December 16, 1992. In Case 21–CA–
28385, the charge in which was filed on November 21,
1991,1 it is alleged that the Respondent violated Section
8(a)(5) and (1) of the National Labor Relations Act by refus-
ing to furnish certain requested information on and after June
21. The charge in Case 21–CA–28475 was filed on January
21, 1992, and alleges that the Respondent violated its bar-
gaining obligations by refusing to apply the terms of a col-
lective-bargaining agreement to employees transferred from
one manufacturing location to another and refusing to recog-
nize the Charging Party as the collective-bargaining rep-
resentative of those employees.
The Respondent generally denied that they engaged in any
unfair labor practices and raised certain affirmative defenses,
including bar by operation of Section 10(b) and waiver.
All parties were represented by counsel and were given the
opportunity to call, examine, and cross-examine witnesses.
Following the hearing all counsel submitted briefs. On the
record as a whole, including my observation of the witnesses,
briefs and arguments of counsel, I make the following
FINDINGS OF FACT
I. JURISDCTION
The Respondent is a Delaware corporation engaged in the
manufacture of relays and related products for the aero-
space industry and at the times material here, operated manu-
facturing facilities in Los Angeles and Buena Park, Califor-
nia. During the course of its business the Respondent annu-
ally ships finished products valued in excess of $50,000 di-
rectly to points outside the State of California. It is alleged,
admitted, and I find that the Respondent is an employer en-
gaged in interstate commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party, International Association of Machin-
ists and Aerospace Workers, District Lodge 94, Local Lodge
102, AFL–CIO (the Union) is admitted to be, and I find is,
a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The material facts here are undisputed and may be briefly
summarized. For many years the Union represented a unit of
production and maintenance employees at the Respondent’s
Relay Division, which was located in Los Angeles. The
Union and the Respondent had negotiated a series of collec-
tive-bargaining agreements covering those employees, the
most recent of which was effective from October 1, 1988,
through October 22, 1991.
At its Los Angeles facility, the Respondent manufactured
relays (electronic switches) of various sizes, for use on air-
craft. The plant consisted of 14 separate buildings and had
become obsolete, particularly for the change in the manufac-
turing process which the Respondent intended to implement.
The Respondent intended to change from the traditional
‘‘batch’’ method to ‘‘world class manufacturing just-in-
time.’’
As explained by various of the Respondent’s witnesses,
the batch method is organized along functional lines, such
that each employee is trained to do one specific piece of a
product and does this repeatedly (in batches). After a particu-
lar function is completed, the unit is put into inventory until
the employee who performs the next function is ready. Thus
before a relay is finished, it will be put into and taken out
of storage several times.
Among other things, just-in-time aims to reduce the
amount of product handling and therefore increase employee
productivity. One witness for the Respondent stated that the
just-in-time process was invented by the Toyota Company
and is as significant a step in increased productivity as the
assembly line. With just-in-time, the team is more important
than the individual employee and the finished product is
more important than the component.
For just-in-time to work, so far as is material to the Re-
spondent’s relay operation, larger and more contiguous space
is needed than was available at Los Angeles.
The Respondent’s control and power division (or the con-
trol products division) was located at Buena Park. Although
995LEACH CORP.
2 The error in the transcript is noted and corrected.
the record is sketchy on the Buena Park operation, it appears
that manufactured there were power and control systems for
aircraft. These systems use groups of relays. The Power and
Control Division had been moved to Buena Park in 1989,
and thereafter some employees were transferred from Los
Angeles to Buena Park. The Union has never represented the
employees at Buena Park. Buena Park is about 19 miles from
the Los Angeles facility.
By letter of September 27, 1990, the Respondent notified
the Union that it was considering closing the Los Angeles fa-
cility and relocating the work at Buena Park. A feasibility
study was done and in December 1990, employees at Los
Angeles began training on just-in-time. And on February 1,
1991, the Respondent informed the Union that it was going
to close Los Angeles and relocate to Buena Park, which
would begin in July and be completed by September 15.
The parties first met to discuss this matter on March 20,
at which time the Respondent stated that it considered the
Buena Park facility to be a new and different operation from
Los Angeles. The employees would be trained to do the
many functions involved in making a completed relay, and
when transferred from Los Angeles to Buena Park, would be
given job classifications which did not exist in the Union’s
collective-bargaining agreement. Thus the Respondent would
not be extending the collective-bargaining agreement to those
Los Angeles employees who relocated to Buena Park.
At this time counsel for the Union requested an oppor-
tunity to view the Buena Park premises, which was then and
thereafter denied.
The parties met again on April 23 and May 14. Again the
Respondent stated that it would not recognize the Union or
the collective-bargaining agreement as to employees working
at Buena Park. Proposals and counterproposals concerning
the work relocation were offered, but no agreement was
reached.
On May 15, the Union filed a grievance relating to the Re-
spondent’s announced refusal to recognize it at Buena Park
or apply the successorship clause of the contract. This was
processed through various steps of the grievance procedure,
but was withdrawn by the Union on October 18.
Finally, there were meetings between the parties on July
3 and September 17. And by letter of June 21, August 16,
September 16, and October 8, certain information was re-
quested by the Union, which the Respondent declined to fur-
nish.
On July 3 the relocation process began. Approximately
280 of the 340 unit employees at Los Angeles took jobs at
Buena Park. Each such employee was terminated on a Fri-
day, and was rehired the next Monday. Each signed a form
acknowledging the termination and rehire. Those who were
not rehired at Buena Park for some reason were given sever-
ance pay. The relocation process was completed about Sep-
tember 15 and the Los Angeles facility was closed.
In evidence is a list of employees who were relocated, and
samples of the termination and rehire forms. However, there
is no indication of how many employees were relocated on
which dates. Jimmy D. Owens, the Respondent’s director of
human resources, testified that the process began in the first
week of July and ended on September 16 or 20. Employee
Phan Ngo Anh Hong testified that she was relocated on July
3,2 along with about 35 of the approximately 40 to 50 em-
ployees in her department. Ommie Neal and Ella Lewis, who
worked in the same department, confirmed their relocation
on July 3, and stated that only BA department employees
were relocated then.
B. Analysis and Concluding Findings
1. Repudiation of the contract
In various factual settings, the Board has considered a
company’s relocation of bargaining unit work. In such cases,
‘‘our task is to distinguish situations where the new facility
is basically the same operation, simply removed to a new
site, from those where the new facility is somehow a dif-
ferent operation from the original. . . . an existing contract
will remain in effect after a relocation if the operations at the
new facility are substantially the same as those at the old and
if transferees from the old plant constitute a substantial per-
centage—approximately 40 or more—of the new plant em-
ployee complement.’’ Harte & Co., 278 NLRB 947, 948
(1986) (citations omitted).
The General Counsel and the Union argue that the former
Los Angeles employees are doing the same work they did at
the Los Angeles plant and since about 88 percent of them
were relocated, the Respondent is obligated to abide by the
contract (which expired subsequent to completion of the relo-
cation). The Respondent contends that the way of making re-
lays at Buena Park is so different from Los Angeles that it
is really a different operation.
The crux of the Respondent’s argument involves changing
from the batch system to just-in-time. The Respondent con-
tends that this was a fundamental change in the manufactur-
ing process which resulted in changes in employee classifica-
tions, responsibilities, and supervision. I reject the Respond-
ent’s argument that changing the manufacturing process re-
sulted in a different operation.
No doubt that just-in-time is very different from batch and
that employees are required to be more flexible. However,
the same people make the same product. The classification
changes were not so significant as to require the Respondent
to hire different people with more advanced skills or edu-
cation. The Respondent retrained its existing work force. The
components used and the way they are put together are the
same at Buena Park as at Los Angeles, as are the finished
relays. Just-in-time simply changes the way in which the
product goes through the various assembly steps.
Though significant, just-in-time is not really different from
any change in the manufacturing process resulting from ad-
vancing technology. Such changes in this industry occur
from time to time. For instance, Jerry Clark, the Respond-
ent’s support operations supervisor, testified that 15 years
ago the company changed from manual feed machines to
automatic feed, a change which reduced the number of em-
ployees. Such also was a significant change in the manufac-
turing process, but clearly did not result in a different oper-
ation.
The move to Buena Park was required because the Los
Angeles physical plant could not accommodate just-in-time.
There is no indication in the record that had the Respondent
been able to institute just-in-time at Los Angeles it would not
996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 All parties agree that should the Respondent be ordered to bar-
gain, the appropriate unit would include only employees making re-
lays, and the other Buena Park employees would be excluded. The
relocated employees would constitute 100 percent of such a unit. But
even if the only appropriate unit would be the entire Buena Park op-
eration, it appears that the relocated Los Angeles employees would
constitute more than 40 percent of the total.
have done so. Nor does the Respondent suggest that with-
drawal of recognition would have been proper had the Re-
spondent been able to implement just-in-time at Los Angeles.
Clearly, had such been the case, withdrawal of recognition
would not have been lawful. The same employees would
have continued to do the same work. There would have been
some changes in classifications and duties, but none in the
fundamentals. The move to Buena Park was a fortuity, hav-
ing itself little to do with the change in the manufacturing
operation.
I therefore conclude that making relays at Buena Park was
not somehow a different operation than making relays at Los
Angeles. Since a substantial majority of the Los Angeles bar-
gaining unit relocated, and constitute more than 40 percent
of the Buena Park work force,3 I conclude that the Respond-
ent should have kept in effect its existing contract with the
Union and should have continued to recognize the Union as
the collective-bargaining representative for those employees
engaged in manufacturing relays.
2. The refusal to furnish information
The Union requested certain information concerning the
Buena Park operation which the Respondent refused to fur-
nish, arguing, basically, that as it had no duty to recognize
the Union for the Buena Park employees, it had no duty to
furnish the information.
I reject the Respondent’s defense, first because it assumes
as correct the Respondent’s position on the merits. Such is
similar to a company arguing that it need not furnish infor-
mation concerning a grievance because the grievance should
be denied. The right to information is not dependent on the
ultimate outcome of matter on which the union seeks it. The
union is entitled to information so that it can effectively rep-
resent employees. The right to information is not restricted
to those situations where the union would prevail.
Further, the right to information cannot be dependent on
the company’s determination of whether the information is
necessary, or would be helpful. Thus, even if the Respondent
was correct about the recognition issue, as the representative
of the relocated employees the Union certainly had the right
to have such information as would be necessary to perform
its representative function. E.g., Curtiss-Wright Corp. v.
NLRB, 347 F.2d 61 (3d Cir. 1965), enfg. 145 NLRB 152
(1963). By refusing to furnish the requested information, the
Respondent violated its bargaining obligations under Section
8(a)(5).
3. The 10(b) bar
The charge in Case 21–CA–8385 was filed on November
21 alleging that the Respondent refused to furnish informa-
tion from and after May. On January 21, 1992, the charge
in Case 21–CA–28475 was filed alleging a violation of Sec-
tion 8(a)(5) based on the relocation ‘‘commencing in or
about July 1991, and concluding in or about September
1991.’’
The Respondent argues that it notified the Union that it in-
tended to relocate the relay work and not honor the collec-
tive-bargaining agreement on various occasions prior to May
20. Therefore, Section 10(b) bars this action.
The General Counsel and Union agree that at meetings in
February, April, and May the Respondent stated that it would
not recognize the Union or continue in effect the collective-
bargaining agreement. However, they point out that the relo-
cation did not commence until July 3 and was not completed
until September 15, which was within the 10(b) period.
For the following reasons, I conclude that Section 10(b)
bars Case 21–CA–28475 relating to the relocation. To deter-
mine whether the 10(b) period has run, the first question is
when the relocation was an actionable unfair labor practice.
If this date was more than 6 months before the charge in
Case 21–CA–28475 was filed, the second question is wheth-
er the charge in Case 21–CA–28385 would toll the time, and
third, whether the unfair labor practice occurred within 6
months of that charge.
The Respondent argues that the relocation was a mere con-
sequence of its announcement. Therefore, the announcement
that it would not recognize the Union or keep in effect the
contract as to relocated employees is controlling for 10(b)
purposes, citing Postal Service Marina Center, 271 NLRB
397 (1984), wherein ‘‘the Board will henceforth focus on the
date of the alleged unlawful act, rather than on the date its
consequences become effective.’’ 271 NLRB at 399. The Re-
spondent announced its intention February and on several oc-
casions thereafter and before May 20.
However, this rule is applicable only where there has been
a clear and unequivocal notice that an unfair labor practice
has been committed. ‘‘Further, the burden of showing such
clear and unequivocal notice is on the party raising the af-
firmative defense of Section 10(b).’’ Chinese American Plan-
ning Council, 307 NLRB 410 (1992).
Clear and unequivocal notice means that all the facts are
in place to find an unfair labor practice, irrespective of
whether all the consequences are known. On this I conclude
the Respondent failed to carry its burden that the unfair labor
practice occurred before the relocation began on July 3.
No doubt the Respondent announced that it intended not
to recognize the Union after the employees were relocated to
Buena Park. This does not mean, however, that it thereby
committed an actionable unfair labor practice. At most such
indicated an intent not to abide by its bargaining obligations
in the future. Such is insufficient to start the 10(b) period.
NLRB v. R.O. Pyle Roofing Co., 560 F.2d 1370 (9th Cir.
1977), enfg. 222 NLRB 786 (1976).
Following its announcement, the Respondent in fact con-
tinued to recognize and bargain with the Union (except for
refusing to furnish information). I conclude that the unfair
labor practice with which the Respondent was charged in
Case 21–CA–28475 did not happen until some employees
had been relocated and this was on July 3. Howard Elec-
trical & Mechanical, 293 NLRB 472 (1989).
This conclusion is not altered by the Union’s contention
in its grievance of May 15 (and its counsel’s May 16 letter)
that the Respondent was then in violation of the contract by
refusing to recognize the Union with respect to relocated
Relay Division employees. At that time, there had in fact
997LEACH CORP.
been no relocation. The Union’s stated position does not
change the facts of what happened and when.
Thus, I conclude that it was not until the Respondent
began relocating employees and refusing to recognize the
Union as to them were sufficient facts in existence to sustain
a finding of an unfair labor practice. But on July 3 (or at
least before July 21) the Respondent had committed the un-
fair labor practice alleged and this was more than 6 months
before the charge in Case 21–CA–28475 was filed. There-
fore, the complaint is barred unless either the earlier charge
can be said to cover these events or the Respondent’s contin-
ued refusal to recognize the Union after July 22 is considered
an independent unfair labor practice.
The charge in Case 21–CA–28385 states: ‘‘O/A May 1991
and since said date, particularly on September 17, 1991, Em-
ployer has refused to furnish Union with information relevant
to its needs and responsibilities to properly represent bargain-
ing unit employees. By said acts and conduct, Employer has
intimidated, coerced, and restrained employees, and has
failed to bargain collectively within the meaning of Section
8(a)(1), (a)(5) and 8(d) of the Act.’’ A complaint based on
this charge was issued on January 15, 1992, alleged that the
Respondent violated Section 8(a)(5) by refusing to furnish
requested information.
In order for the Respondent’s refusal to abide by the con-
tract not to be barred, it must be found that the early July
activity is covered by the charge in Case 21–CA–28385. In
order for this to be found, the complaint allegations in Case
21–CA–28475 must be ‘‘closely related’’ to those alleged in
the Case 21–CA–28385 charge. I conclude they are not
closely related.
In Redd-I, Inc., 290 NLRB 1115 (1988), the Board an-
nounced the test to be used in determining whether a timely
charge is sufficient under Section 10(b) for otherwise un-
timely complaint allegations. The Board held that complaint
allegations not in the charge would nevertheless be consid-
ered not barred if they were closely related to those in the
charge. The Board said:
In applying the traditional ‘‘closely related’’ test in this
case, we will look at the following factors. First, we
shall look at whether the otherwise untimely allegations
are of the same class as the violations alleged in the
pending timely charge. This means that the allegations
must all involve the same legal theory and usually the
same section of the Act (e.g., 8(a)(3) reprisals against
union activity). Second, we shall look at whether the
otherwise untimely allegations arise from the same fac-
tual situation or sequence of events as the allegations
in the pending timely charge. This means that the alle-
gations must involve similar conduct, usually during the
same time period with a similar object (e.g., termi-
nations during the same few months directed at stop-
ping the same union organizing campaign). Finally, we
may look at whether a respondent would raise the same
or similar defenses to both allegations, and thus wheth-
er a reasonable respondent would have preserved simi-
lar evidence and prepared a similar case in defending
against the otherwise untimely allegations as it would
in defending against the allegations in the timely pend-
ing charge. 290 NLRB at 1118.
The Respondent’s repudiation of the contract as to relo-
cated employees is fundamentally distinct from its the refusal
to furnish information. Indeed, the General Counsel treated
these matters as different by issuing a complaint which in-
cluded only the refusal to furnish information allegation and
subsequently issuing the consolidated complaint. Apart from
the relationship of the two unfair labor practices to the Re-
spondent’s closure of the Los Angeles facility, they arise
from different conduct and involve different legal theories
and defenses. Accordingly, I conclude there is an insufficient
factual or legal nexus between the charge in Case 21–CA–
28385 and the allegations in Case 21–CA–28475 to with-
stand the defense of the 10(b) bar. Nippondenso Mfg. U.S.A.,
299 NLRB 545 (1990).
To find that the charge alleging a refusal to furnish infor-
mation suffices for a complaint alleging refusal to apply a
collective-bargaining agreement would be contrary to the
policy of Section 10(b) and would excuse the Union for not
filing a timely charge. Here, there was no attempt at decep-
tion on the Respondent’s part. Indeed, the Respondent was
very forthright in its announcement to the Union that it
would not apply the contract to the employees once they
were relocated. The Respondent told the Union this in Feb-
ruary and on many occasions thereafter, and on May 15 the
Union filed a grievance alleging this to be a violation of the
contract. Still no charge was filed as to this conduct until
January 22, 1992—nearly a year after the Respondent’s first
announced intention to repudiate the contract and more than
6 months after the relocation began.
The Union contends that the complaint is not time-barred
because the Respondent’s unfair labor practice continued
within 6 months of the charge in Case 21–CA–28475. In A
& L Underground, 302 NLRB 467 (1991), the Board over-
ruled those cases applying a continuing violation theory as
to total contract repudiation. ‘‘We find that the policies un-
derlying Section 10(b) are best effectuated by requiring a
party, in order to avoid the time-bar, to file an unfair labor
practice charge within 6 months of its receipt of clear and
unequivocal notice of total contract repudiation.’’ Id. at 468.
The Board held that where, as here, there has been a total
contract repudiation, as distinct from an ad hoc breach, the
limitation period begins to run from the time the charging
party has clear and unequivocal notice. To find a charge
timely at any time within the contract term and for 6 months
thereafter would do ‘‘injury to the stability of collective-bar-
gaining relationships, and (it) impair(s) the process for adju-
dicating those charges.’’ Id. at 468.
Here, there was clear and unequivocal notice from the Re-
spondent to the Union that it would not abide by the contract
as to relocated employees, followed by relocation and non-
adherence to the contract. These events came together in
early July and this is when the unfair labor practice occurred.
This was not a breach of contract. It was a total repudiation
as to those employees relocated, even though the Respondent
continued to honor it as to the unrelocated employees. Thus,
the Union was required to file a charge within 6 months of
July 3 when the Respondent began to relocate employees. It
did not do so. Therefore, I conclude that the complaint alle-
gation relating to the contract repudiation is time-barred.
Intertwined with the contract repudiation is the Respond-
ent’s withdrawal of recognition of the Union as the rep-
resentative of Relay Division employees. Although the Union
998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
may well have the support of a majority of Buena Park em-
ployees in an appropriate unit, the withdrawal of recognition
was coincident with the repudiation of the contract. There-
fore, I conclude that a general bargaining order would be
barred by Section 10(b), for the reasons given above.
4. The defense of waiver
On June 14, 1989, the Respondent and the Union entered
into an agreement which would cover any move of produc-
tion equipment from Los Angeles to Buena Park. The agree-
ment set forth the conditions under which displaced Los An-
geles employees could be hired at Buena Park, but specifi-
cally stated that it was ‘‘not intended and shall not be con-
strued as an express or implied recognition by the Company
of the Union as the bargaining representative of any employ-
ees of the Company’s Buena Park Operation.’’
The Respondent contends that this agreement was meant
to cover the situation where Los Angeles work would be re-
located to Buena Park and that the Union thereby waived the
Respondent’s obligation to recognize the Union as to relo-
cated employees.
Whatever the merits of the Respondent’s argument, suffice
it that the agreement expired by its terms on June 13, 1991.
Since this agreement was not in effect at the time the Re-
spondent began relocating Los Angeles employees to Buena
Park, it cannot operate as any kind of a waiver of the
Union’s representational rights.
REMEDY
Having concluded that the Respondent violated the Act by
not furnishing certain requested information to the Union, I
shall order that it cease and desist therefrom. However, the
information was necessary for the Union in policing the con-
tract as to the relocation of work from Los Angeles to Buena
Park. Since I have concluded that any unfair labor practice
relating to that conduct is barred by Section 10(b), it is un-
necessary to provide for an affirmative order requiring the
Respondent to furnish the information. Reece Corp., 294
NLRB 448 (1989).
I shall also recommend that the Respondent post an appro-
priate notice, inasmuch as its refusal was more than simply
a legal issue between it and the Union. Cf. Curtiss-Wright
Corp., 145 NLRB 152 (1963).
[Recommended Order omitted from publication.]