Georgia Power Co.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 342 NLRB No. 18 192 Georgia Power Company and International Brother- hood of Electrical Workers, Local Union No. 84. Case 10–CA–33361 June 30, 2004 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER AND WALSH On September 12, 2002, Administrative Law Judge Pargen Robertson issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief. The Re- spondent filed exceptions and a supporting brief, the Charging Party International Brotherhood of Electrical Workers, Local Union No. 84 (the Union) filed an an- swering brief, and the Respondent filed a reply brief. 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 decided to affirm the judge’s rulings, findings, and conclusions as modified and to adopt the recommended Order as modi- fied and set forth in full below.1 1. For the reasons set forth in his decision, we agree with the judge’s dismissal of the complaint allegation that the Respondent violated Section 8(a)(2) and (1) of the Act by creating its Workplace Ethics program, and by recognizing, supporting, and assisting it. A prerequisite to finding such a violation is that the entity involved is a “labor organization” as defined in Section 2(5) of the Act. Crown Cork & Seal Co., 334 NLRB 699, 700 (2001). The record supports the judge’s key finding that Workplace Ethics is not a labor organization under Sec- tion 2(5) because it does not exist, even in part, for the purpose of “dealing with” the Respondent. Id. Compare Keeler Brass Co., 317 NLRB 1110, 1114 (1995) (“deal- ing with” found because “grievance procedure func- tioned as a bilateral mechanism, in which the Respondent and the committee went back and forth explaining them- selves until an acceptable result was achieved”). 2. The judge found, and we agree for the reasons set forth in his decision, that the Respondent violated Sec- tion 8(a)(5) and (1) of the Act by making unilateral changes in bargaining unit employees’ terms and condi- tions of employment by implementing the Workplace Ethics program, without providing the Union notice and adequate opportunity to bargain.2 In addition, we agree 1 We have modified the judge’s recommended Order to conform to the violations found, and have substituted a new notice that reflects these changes. 2 Chairman Battista notes that the Respondent’s October 2001 invita- tion to the Union to bargain over the Workplace Ethics program came with the judge, as set forth in his decision, that the Re- spondent bypassed the Union and dealt directly with bar- gaining unit employees in violation of Section 8(a)(5) and (1) of the Act by communicating directly to unit em- ployees regarding the formation of Workplace Ethics by its memorandum dated June 1, 2001. See Southern Cali- fornia Gas Co., 316 NLRB 979, 982 (1995) (direct deal- ing occurs when respondent communicates directly with union-represented employees to the exclusion of the un- ion, for the purpose of establishing or changing terms and conditions of employment or undercutting the Un- ion’s role in bargaining). We further agree with the judge, as set forth in his decision, that the Respondent engaged in direct dealing with the represented employees in its creation of the five work teams, prior to the imple- mentation of the Workplace Ethics program. The Re- spondent solicited employee participation (including employees represented by the Union) in forming these work teams, and did not consult the Union in so doing.3 3. We reverse, however, for the reasons set forth be- low, the judge’s finding that the Respondent bypassed the Union and dealt directly with bargaining unit em- ployees in violation of Section 8(a)(5) and (1) of the Act by establishing a “Crew Leader Selection committee” (CLSC) to review the selection process for crew leader positions. The record shows4 that the Respondent and the Union have negotiated a memorandum of understanding for a crew leader selection process. Some senior employees complained to management when they were not selected as crew leaders under that negotiated process. The Re- spondent thereafter created an employee committee con- cerning the crew leader selection process: the CLSC. The Respondent sought employee volunteers to serve on too late to relieve the Respondent of liability. Following its announce- ment in June 2001 to the employees of the Workplace Ethics commit- tee, the Respondent immediately began operating the program by proc- essing employee concerns. Thus, by the time the Respondent offered to bargain with the Union about the change, the program was already operational. 3 Chairman Battista finds it unnecessary to decide whether there was a direct dealing violation with respect to the Respondent’s June 1 memo, in which it informed the employees of the Workplace Ethics program. The Respondent had met with and notified the Union of its intention to implement the committee prior to sending this memo to the employees. See Permanente Medical Group, Inc., 332 NLRB 1143, 1144 (2000) (finding no direct dealing where the employer kept the union informed before and during the “design phase,” leading up to the proposal for changes). An additional “direct dealing” violation would not materially affect the remedy. 4 The Respondent argues in its exceptions that the record does not support the judge’s finding that it impaneled an employee input com- mittee in addition to the CLSC. We find merit in Respondent’s excep- tion. In this section of our decision, we have summarized the record facts pertaining to the CLSC issue. GEORGIA POWER CO. 193 the CLSC. Unit employees served on the CLSC; a man- agement official was also appointed; and an additional management official supervised the CLSC process. The Respondent advised the CLSC that they were not to negotiate or to even get into the subject matter of ne- gotiations. The Respondent’s manager of labor relations, Henry Lightfoot, specifically assured Union Business Manager Doyle Howard that the crew leader selection process would not change without negotiations. The CLSC only met twice. It then submitted a memo to Respondent’s vice president, Mickey Brown, setting forth “recommendations from committee to review Crew Leader Selection Process.” The Respondent has made no changes to the crew leader selection process. An employer may lawfully consult with its own em- ployees in formulating proposals for bargaining. Perma- nente Medical Group, supra, 332 NLRB at 1144. The Respondent’s establishment of the CLSC was a lawful effort by the Respondent to formulate proposals regard- ing the crew leader selection process. In Permanente Medical Group, supra, the respondent, a health care service provider, used employee volunteers to provide input during the design phase of a program to increase patient and family involvement in care and to reorganize care management.5 The Board found no di- rect dealing violation. The Board emphasized that the respondent made it clear that the design phase in which employees participated would yield only a proposal to be presented to the unions for bargaining. The respondent further “always made clear that its bargaining obligation ran to the Unions.” 332 NLRB at 1145. It likewise told the employee participants that they would not be engaged in bargaining or setting any working conditions, and that the design phase was not intended to be a substitute for negotiations with the unions. The Board accordingly concluded that the respondent “simply turned to its em- ployees to assist it in formulating” its proposal to the unions while concomitantly honoring its bargaining obli- gation to the unions. Id. Permanente Medical Group is dispositive of the in- stant issue. There is no dispute that the Respondent here made clear that it would honor its bargaining obligation to the Union, and that the crew leader selection process would change only via negotiations. Union Business Manager Howard conceded at the hearing that the Re- spondent’s manager of labor relations, Lightfoot, explic- itly notified him that the Respondent was “not going to change” the parties’ agreed-upon crew leader selection process “without negotiating it.” Indeed, Lightfoot testi- 5 Several unions represented the employees involved in the design phase. fied that he advised Howard that if the Respondent sought changes as a result of the CLSC, “I would contact [Howard] and he could pick his committee, we would pick ours, and we would negotiate [any] changes.”6 The Respondent likewise cautioned the CLSC members that they were not to engage in negotiations. The Respondent here thus lawfully turned to its employees to assist it in formulating proposals,7 while remaining vigilant in hon- oring its obligation to bargain exclusively with the Un- ion. We shall accordingly dismiss this complaint allega- tion.8 Our dissenting colleague seeks to distinguish Perma- nente on the ground that, in the instant case, Union Busi- ness Manager Doyle sought to be on the committee, and the Respondent denied the request. We believe that this fact does not warrant a result contrary to Permanente. The critical point is that the Respondent was developing a management proposal to present to the Union. There was no obligation to involve a union representative in the formulation of a management proposal. Moreover, our dissenting colleague relies on Central Management Co., 314 NLRB 763 (1994), and Allied- Signal, Inc., 307 NLRB 752 (1992), in support of his assertion that the Respondent’s conduct was “likely to erode the Union’s position as exclusive representative.” As in U.S. Ecology Corp., 331 NLRB 223 (2000), these cases are materially distinguishable from the facts before us. While the employer in Central Management Co. “offered more favorable terms to the employees on the condition that they abandon the union . . . [n]o such quid pro quo offer is alleged or evident here.” U.S. Ecology, supra, 331 NLRB at 226-227 fn. 23 (emphasis in origi- nal). In Allied-Signal, the employer unilaterally imple- mented a smoking ban pursuant to the recommendations of an employee task force, and the union was not aware of the task force until the ban had been imposed. Here, however, the Respondent made no changes to the crew leader selection process, and it assured the Union that it would not make changes without negotiating first. 6 The judge thus erred in finding that the evidence did not show that preparation for negotiations was a reason underlying the CLSC. Our dissenting colleague likewise errs in claiming that the Respondent excluded the Union from the process; the Respondent rather specifi- cally included the Union by its offer to bargain. Neither the dissent nor the Union assert that this was not a bona fide offer. 7 See E. I. du Pont & Co., 311 NLRB 893, 894 (1993) (employer may lawfully form an employee “brainstorming” group to develop a “host of ideas” from which employer “may glean some ideas”). 8 The judge did not address the complaint allegation that the Re- spondent violated Sec. 8(a)(5) and (1) of the Act by establishing CLSC unilaterally and without notice to the Union. No party has filed excep- tions on this issue. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 194 AMENDED CONCLUSION OF LAW Substitute the following for Conclusion of Law 3 in the judge’s decision. “3. By making unilateral changes in bargaining unit employees’ terms and conditions of employment by im- plementing the Workplace Ethics program without pro- viding the Union notice and adequate opportunity to bar- gain, and by bypassing the Union and dealing directly with bargaining unit employees, the Respondent has en- gaged in conduct in violation of Section 8(a)(5) and (1) of the Act.” ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified and set forth in full below and orders that the Respondent, Georgia Power Company, Atlanta, Georgia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Making unilateral changes in bargaining unit em- ployees’ terms and conditions of employment by imple- menting the Workplace Ethics program without provid- ing the Union notice and adequate opportunity to bar- gain. (b) Bypassing the Union and dealing directly with bar- gaining unit employees. (c) In any like or related manner interfering with, re- straining, or coercing its 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 of the Union, cease using the Work- place Ethics program regarding bargaining unit employ- ees to the extent that the Workplace Ethics program in- volves changes from the procedures existing under the Respondent’s prior programs. (b) Before implementing any changes in wages, hours, or other terms and conditions of employment of unit em- ployees, notify and, on request, bargain with the Union as the exclusive collective-bargaining representative of employees in the bargaining unit as described in the par- ties’ memorandum of understanding effective from July 1, 1999, to June 30, 2002. (c) Within 14 days after service by the Region, post at its Atlanta, Georgia facility and other facilities at which unit employees are regularly employed, copies of the attached notice marked “Appendix.”9 Copies of the no- 9 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” tice, on forms provided by the Regional Director for Re- gion 10, after being signed by the Respondent’s author- ized representative, shall be posted by the 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 the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facili- ties involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current and former employees employed by the Respondent at any time since June 1, 2001. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. MEMBER WALSH, dissenting in part. I dissent from the majority’s unwarranted reversal of the judge’s finding that the Respondent bypassed the Union and dealt directly with bargaining unit employees in violation of Section 8(a)(5) and (1) of the Act by es- tablishing a “Crew Leader Selection committee” to re- view the selection process for bargaining unit crew leader positions.1 It is well settled that the Act requires an employer to meet and bargain exclusively with the bargaining repre- sentative of its employees. An employer who deals di- rectly with its unionized employees or with any represen- tative other than the designated bargaining agent regard- ing terms and conditions of employment violates Section 8(a)(5) and (1). Armored Transport, Inc., 339 NLRB 374, 376 (2003); Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 683–684 (1944). The Respondent’s total ex- clusion of the Union from the Crew Leader Selection committee process (CLSC) contravened these established principles. There is no dispute that the Respondent and the Union negotiated a process for the selection of crew leaders, and embodied their agreement in a memorandum of un- derstanding. By virtue of the Union’s status as exclu- sive-bargaining representative, the Respondent was obli- gated to deal only with the Union with respect to this subject. However, when some employees expressed to the Respondent their concerns about the negotiated crew leader selection process, the Respondent instead met di- rectly with them. Thereafter, without even notifying the Union, the Respondent created an employee committee 1 In all other respects, I agree with the majority opinion. GEORGIA POWER CO. 195 to review the selection process (the CLSC), sought em- ployee volunteers to serve on the CLSC, met with the employees serving on the CLSC, and solicited their comments on a draft memorandum proposing eight changes to the negotiated procedure. The Respondent flatly barred the Union from any participation in the CLSC whatsoever. These facts are materially distinguishable from those of Permanente Medical Group, 332 NLRB 1143 (2000), relied on by the majority. The respondent there informed the unions at the outset of its plans for its health care initiative, and union representatives were invited to and did participate in the process. Here, by contrast, the Re- spondent at all material times excluded the Union from the CLSC, even after union Business Manager Doyle Howard learned about it and sought to participate.2 Howard telephoned the Respondent’s manager of labor relations, Henry Lightfoot, objected to the CLSC because it was dealing with the parties’ negotiated agreement, and alternatively sought union participation in the proc- ess by helping select unit employees for the CLSC. The Respondent rebuffed Howard’s entreaty. The Respon- dent’s direct communication with unit employees, to the exclusion of the Union, strongly supports a finding of unlawful direct dealing. Southern California Gas Co., 316 NLRB 979, 982 (1995). As stated by the Second Circuit Court of Appeals in NLRB v. General Electric Co.,3 direct dealing will be found when the employer has chosen “to deal with the Union through the employees, rather than with the employees through the Union.” This is precisely what the Respondent did. The majority errs in finding that the Respondent’s di- rect dealing was ameliorated because it stated that it would not bargain with unit members serving on the CLSC, or that it would at some subsequent unspecified time bargain with the Union. In order to find direct deal- ing, “[i]t is not necessary that the employer actually bar- gain with the employees. The question turns on whether the employer’s direct solicitation of employee sentiment over working conditions is likely to erode the union’s position as exclusive representative.” Central Manage- ment Co., 314 NLRB 763, 767 (1994). There is no dis- pute that crew leader positions are highly sought after by employees, and that the selection process is of particular significance to them. The evidence fully supports the judge’s key finding that the Respondent’s direct dealing with employees, concerning the coveted crew leader po- 2 A union member, who had been solicited by the Respondent to serve on the CLSC, advised Howard of its existence. 3 418 F.2d 736, 759 (2d Cir. 1969), cert. denied 397 U.S. 965 (1970). Accord: Armored Transport, Inc., supra.. sitions and changes to a procedure it negotiated with the Union, was likely to erode the Union’s position as exclu- sive representative. Allied-Signal, Inc., 307 NLRB 752, 753–754 (1992). The Respondent’s conduct necessarily undermines the collective-bargaining process and the principle of exclusive representation on which it de- pends. 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 Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist any union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT make unilateral changes in bargaining unit employees’ terms and conditions of employment by implementing the Workplace Ethics program without providing International Brotherhood of Electrical Work- ers, Local Union No. 84 notice and adequate opportunity to bargain. WE WILL NOT bypass the Union and deal directly with bargaining unit employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights set forth above. WE WILL, on request of the Union, cease using the Workplace Ethics program regarding bargaining unit employees to the extent that the Workplace Ethics pro- gram involves changes from the procedures existing un- der the Respondent’s prior programs. WE WILL, before implementing any changes in your wages, hours, or other terms and conditions of employ- ment, notify and, on request, bargain with the Union as the exclusive collective-bargaining representative of our employees in the bargaining unit as described in the memorandum of understanding effective from July 1, 1999, to June 30, 2002. GEORGIA POWER COMPANY DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 196 Lisa Y. Henderson, Esq. for the General Counsel. Laura H. Kriteman, Esq. and Fred Dawkins, Esq. for the Re- spondent. J. Michael Walls, Esq., for the Charging Party. DECISION PARGEN ROBERTSON, Administrative Law Judge. This hear- ing was on May 13, 2002 in Atlanta, Georgia. I have consid- ered the full record in reaching this decision, including de- meanor of the witnesses and briefs filed by counsel for the gen- eral counsel, Respondent, and the Charging Party. Jurisdiction Respondent is a Georgia corporation with an office and place of business in Atlanta, Georgia. It is engaged in the business of generating and distributing power utility services. During the preceding 12-month period, a representative period, it received revenues in excess of $250,000 from providing electrical power services to enterprises in Georgia; which enterprises, in turn, during the same period, purchased and received goods valued in excess of $50,000 from suppliers located outside Georgia. Respondent admitted that at all times material, it has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the National Labor Relations Act (the Act). Labor Organizations Respondent admitted that International Brotherhood of Elec- trical Workers Local 84 is a labor organization within the meaning of Section 2(5) of the Act and that it and the Union have been parties to several collective bargaining agreements with the most recent being effective July 1, 1999, to June 30, 2002. The Union represents the employees covered by those collective-bargaining agreements. The Unfair Labor Practice Allegations General Counsel alleged that Respondent engaged in conduct in violation of Section 8(a)(1), (2) and (5). The alleged 8(a)(2) conduct included creating a labor organization; and recognizing and rendering assistance and support to that labor organization. Respondent allegedly violated Section 8(a)(5) by unilaterally and through direct dealing with employees, implementing a grievance procedure that included employee representatives and by establishing a committee to review the selection process for bargaining unit crew leader positions. The Record Evidence Created Workplace Ethics? Recognized and helped Workplace Ethics? Employees including those within and outside the bargaining unit, were notified of Respondent’s implementation of Work- place Ethics, by memorandum dated June 1, 2001 (GC Exh. 22): The following announcement is being sent to all Georgia Power employees on behalf of President and CEO David Ratcliffe: Today I am announcing the formation of a new Workplace Ethics department. The new group combines the roles of Cor- porate Concerns and parts of the Southern Company Services EEO function. This department will report to Frank McCloskey, currently vice president of Diversity Action. Frank’s organization will now be called Diversity and Workplace Ethics. A new Work- place Ethics manager position will be posted internally and externally in the coming days. This manager will report to Frank. It is critical to our company that we do the best job possible in welcoming and resolving employee concerns. Our current method of handling employee complaints has been in place for more than a decade. During that time new approaches have been developed by other companies that we feel will improve our program. Our new approach will emphasize pro- active communication and use of concerns as key source for surfacing issues. I would be remiss if I did not take this opportunity to thank both Lee Glenn and Herman Pennamon, who have been run- ning our Corporate Concerns and EEO processes. They have both done an excellent job in handling many employee issues with professionalism and integrity. Our desire to change these programs in no way reflects on the fine job they have both done. The new process for resolving employee concerns will differ from the previous ones in several ways. Among them: When Workplace Ethics staff members, who will be called employee advocates, are unable to resolve a concern through functional management, the employee will be able to take his case to an in-house ombudsman, Frank McCloskey. Frank will have authority to make final decisions on workplace eth- ics issues, accountable only to me. Employees will be able to report concerns using a toll-free number staffed by an outside firm. A peer review process is currently being designed. In this ap- proach to dispute resolution, trained volunteer employees will review concerns and make binding decisions. The process will be implemented in phases, beginning with customer op- erations. Concerns about discrimination or harassment will go to Workplace Ethics, rather than EEO. EEO will now focus on Affirmative Action planning and monitoring, while handling inquires from the EEOC and the Georgia Department of La- bor for Georgia Power. You’ll be hearing more about the peer review process later this summer, when its design is complete. This is a “best prac- tices” approach that has been used successfully at other com- panies to improve trust and openness in the concerns process.1 1 As shown below, the Respondent actually implemented a Work- place Ethics practice that differed from the one outlined above. Bentina Chisolm testified that Workplace Ethics followed the procedure shown in R. Exh 2. An employee would first contact an outside organization through a toll free call and meet with an employee of Respondent (workplace ethics coordinator). The workplace ethics coordinator would investigate the employee concerns and attempt to resolve any differences with management. If the employee was dissatisfied with the results following the coordinator’s decision, he or she could appeal to GEORGIA POWER CO. 197 The parties stipulated that Respondent placed employees, in- cluding bargaining unit employees, on its ethics employee re- view panels and that it compensated all employees, supervisors, and managers for time served on the ethics review panels. Union Business Agent Doyle Howard testified that Respon- dent first advised him about its Workplace Ethics during a July 17, 2001 meeting. Howard was told that Respondent formerly had two programs. One was EEO and the other Corporate Con- cern. Those two programs were being combined into one pro- gram that would be called Workplace Ethics. In the fall of 2001, the Union and the Respondent met re- garding Workplace Ethics. Bentina Chisolm explained the pro- gram for Respondent. Her presentation included a slide presen- tation and a full explanation of the program. Chisolm answered questions as she made her presentation. The Union was given an outline, which was similar to the slide presentation. At one point during Chisolm’s presentation Doyle Howard objected to inclusion of bargaining unit employees in the Workplace Ethics program on the grounds that the Union was the unit employees’ sole representative and the collective-bargaining agreement included a grievance procedure. Since implementing the Workplace Ethics program, Respon- dent has not advised the Union whenever it received a griev- ance from a bargaining unit employee and the Union has not been afforded opportunities to represent unit employees during Workplace Ethics grievances. Andrea Jackson testified that she was a meter reader.2 Jack- son received disciplinary action in September 2001. She was placed on decisionmaking leave for not reporting an accident. Jackson contacted Walter Dukes who is Respondent’s manager over distribution. Dukes advised her to contact her shop stew- ard and Dukes gave her some information on Workplace Eth- ics. Dukes told Jackson that she should contact Jo Molock. Jackson filed a grievance under the parties’ collective- bargaining agreement.3 After completing the first step of the grievance, Jackson contacted Bentina Chisolm in Workplace Ethics. Jackson questioned Chisolm as to whether she should be talking with Workplace Ethics in view of the Union’s law- suit claiming Workplace Ethics was unlawful. Chisolm told her that Workplace Ethics was not trying to do away with the Un- ion and that Workplace Ethics was set up to represent the em- ployees and conduct investigations. Bentina Chisolm said that Jackson could continue her case with the Union at the conclu- sion of the Workplace Ethics process. In November Bentina Chisolm phoned Jackson and said that she had made her deci- sion and that she was ruling in Jackson’s favor. However, Jack- son later learned that reference to the alleged accident was not removed from her personnel file. Jackson contacted Bentina Chisolm again in January. After an investigation Chisolm told Jackson that she would continue to be charged with the acci- dent, which had given rise to her disciplinary action. Jackson either an “Employee Review” panel or to a company officer. The deci- sion of the review panel or company officer would be final. 2 Meter reader is a bargaining unit position. 3 The parties collective-bargaining agreement is entitled “Memoran- dum of Agreement” and is sometimes referred to as MOA. filed a second grievance with the Union. Before the grievance was resolved Jackson was terminated on other grounds. Respondent called Howard Winkler who was formerly its la- bor relations coordinator.4 Winkler testified that before forma- tion of Workplace Ethics, employees submitted concerns and discrimination claims to either Corporate Concerns or EEO. Both unit and nonunit employees used those programs. Corpo- rate Concerns investigated a broad array of employee com- plaints including concerns about discipline or termination and general issues of unfairness. EEO focused on charges of illegal discrimination. Respondent’s CEO set up five work teams5 of employees to investigate general areas of concern to employees during July 2000. Those work teams made recommendations, which were eventually reduced to some 33 projects, including the review and improvement of Corporate Concerns and EEO. Winkler was involved in researching ways to improve Respondent’s programs. Among other things he considered how implementa- tion of the various alternatives would impact on its collective- bargaining agreement. Ultimately Respondent changed to the Workplace Ethics program after it became convinced that pro- gram would not impact on its collective-bargaining agreement to any greater extent than had its previous Corporate Concerns and EEO programs. Bentina Chisolm started working for Respondent on August 1, 2001, as manager of Workplace Ethics. Her understanding was that Workplace Ethics could address any issues filed by employ- ees except issues covered by the memorandum of agreement6 with the Union. Chisolm made a presentation to the Union as well as to employees both within and outside the bargaining unit, regarding Workplace Ethics and she supplied the Union with a memorandum outlining that presentation (R. Exh. 1): As you are aware the enhanced Workplace Ethics process is available to bargaining unit employees. The purpose of this memorandum is to explain how Workplace Ethics and Labor Relations will manage cases brought by bargaining unit em- ployees. If you have any questions please feel free to contact either Labor Relations or Workplace Ethics. Workplace Ethics will notify Labor Relations of all Workplace Ethics cases/concerns involving covered employees. If a covered-employee concern has been filed involv- ing an issue covered by the memorandum of agree- ment (MOA), the employee will be advised that con- tractual issues should be addressed through the bar- gaining unit and Labor Relations following the provi- sions of the MOA. 4 From 1991 through 1995 Winkler worked in Respondent’s human resources department. He had some dealings with Corporate Concerns and EEO during that period. Winkler is currently Respondent’s human resources strategy director. 5 Howard testified that the work teams included bargaining unit em- ployees. 6 The parties’ collective-bargaining agreement is entitled “Memo- randum of Agreement.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 198 If a covered-employee concern involves a Discharge, Demotion or Discipline for violation of a provision of the MOA, Workplace Ethics and Labor Relations will make a cases by case determination as to whether the employee is eligible for the Workplace Ethics process. The employee will be notified of this determination. The provisions of paragraph 63 of the MOU that re- quire covered employees to file certain grievances within 20 days will not be extended. If a covered-employee concern has been filed with Workplace Ethics involving a Discharge, Demotion or Discipline, and a grievance has also been filed related to the same concern, the responsible manager will be notified. The manager may choose not to rule on the grievance while Workplace Ethics investigates the concern. However, management should not be hesitant in making timely, sound decisions during the griev- ance process. Labor Relations does have a responsibil- ity to ensure that grievances are resolved promptly. If the Workplace Ethics Coordinator recommends a change to the supervisor’s original action regarding a covered employee, the supervisor or the manager who has heard the grievance may choose at any time to fol- low the recommendation. Prior to arbitration certification, if the Employee Re- view Panel of Review Officer rules regarding a cov- ered employee, that ruling becomes the decision of the Company, and the grievance decision will be amended if a change needs to be made. If the Union certifies a grievance for arbitration, Work- place Ethics will no longer handle the case/concern. The arbitration award will be the final decision of the case/concern regardless of the Workplace Ethics rec- ommendation, the Employee Review Panel decision or the Review Office decision. Respondent Manager of Labor Relations Henry Lightfoot first notified the Union about its change to the Workplace Eth- ics program at a meeting on May 30, 2001. At that time M.O. Wallace was the union business agent. A few days after the meeting, Wallace contacted Lightfoot and said the Union could not support the Workplace Ethics process. The next meeting Lightfoot held with the Union was delayed until July 17 when he met with Doyle Howard.7 Lightfoot advised Howard of the planned Workplace Ethics program and, on October 10, Re- spondent through Bentina Chisolm made a Workplace Ethics presentation to the Union. Shortly after the October 10 meeting, Howard phoned Lightfoot that he had problems with Work- place Ethics and wanted to know if the parties could work any- thing out. Subsequently, Lightfoot told Howard that unless he had something specific to propose, Respondent would go ahead 7 After the May 30, 2001 meeting M.O. Wallace advised Lightfoot that he was not seeking reelection and that issues including Workplace Ethics would be delayed until the new administration came in. Lightfoot recalled that Doyle Howard replaced Wallace on July 13, 2001. with Workplace Ethics. Lightfoot testified that it is his opinion that Respondent had a right to implement Workplace Ethics under the management rights clause of the memorandum of agreement.8 Established a Committee Reselection of Crew Leaders? Business Agent Doyle Howard testified without dispute, that the Union and Respondent have agreed to a crew leader selec- tion process. However, in late October 2001 a member of the bargaining unit told Howard that he was on a committee formed by Respondent that was considering how to improve the crew leader selection process. Howard objected but Respondent replied the committees would not talk about any negotiated part of the crew leader selection process. Respondent Manager of Labor Relations Henry Lightfoot testified that some senior employees complained when they were not selected as crew leaders under the process negotiated with the Union. Instead, a junior employee had been selected. The employees complained that the crew leader selection proc- ess was unfair. Management met with those complaining em- ployees and then asked Lightfoot if it could legally put together a focus group or committee to seek input from employees. Sub- sequently, Union Business Agent Doyle Howard phoned Lightfoot and inquired about the input committee. Howard complained that he should be on the committee and Lightfoot disagreed. Lightfoot testified that no changes have been made in the negotiated crew leader selection process. Findings Credibility The record showed there were no material credibility con- flicts. Minor conflicts including whether Doyle Howard ob- jected to the Workplace Ethics program during a presentation by Bentina Chisolm, are insignificant in view of the fact that both witnesses for the the General Counsel and Respondent testified that the Union did object to Workplace Ethics on more than one occasion. Findings of Fact Created, Recognized and Helped Workplace Ethics? Respondent implemented Workplace Ethics in 2001. Before that Respondent had two programs, (i.e., Equal Employment Opportunity and Corporate Concerns). Respondent showed among other things, a July 2000 “Diversity Initiative” illus- trated to it that employees viewed the EEO and Corporate Con- cerns programs as deficient in a number of areas. Respondent combined the EEO and Corporate Concerns programs into the Workplace Ethics program. The Workplace Ethics program as well as the EEO and Corporate Concerns programs before it included both employees represented by the Union and em- ployees that were not represented by the Union. Respondent first notified the Union of its Workplace Ethics program on May 30, 2001. Subsequently, the Union’s new business agent was told of Workplace Ethics on July 17, 2001. 8 The parties’ memorandum of agreement includes a management clause in art. III. However, there is nothing in that provision which purports to give management the right to establish Workplace Ethics. GEORGIA POWER CO. 199 A formal presentation outlining the Workplace Ethics program was made to the union executive board on October 10, 2001. Under Workplace Ethics, an action is initiated when an em- ployee files a concern. A Workplace Ethics coordinator investi- gates the concern “by talking to all involved parties and view- ing all relevant documents.” The Workplace Ethics coordinator then “meets with the concerned individual and management separately to convey the results of the investigation.” Respon- dent may follow or ignore the coordinator’s recommendation. The concerned individual may appeal an unfavorable outcome of the coordinator investigation to the employee review panel or to a review officer. The panel or officer may hear witnesses and review documents and then either grant, modify or deny the employee’s concern. That decision, whether from the Employee review panel or a review office, is binding on Respondent. Employees in the bargaining unit may pursue a concern or a grievance separately, or simultaneously pursue a grievance under the memorandum of agreement and a concern through Workplace Ethics. Workplace Ethics proceedings are automati- cally terminated if a grievance filed under the parties’ collec- tive-bargaining agreement on the same issue is certified for arbitration. Former bargaining unit employee Andre Jackson filed a grievance and a concern with Workplace Ethics. She had been disciplined for failing to report an accident in a company vehi- cle. Jackson first filed a grievance under the MOA. Afterward she filed a concern with Workplace Ethics. The Workplace Ethics investigator, Bentina Chisolm, determined that the disci- plinary action was not warranted. At that time Jackson did not pursue her grievance but, on subsequently discovering she was still charged with the accident,9 Jackson filed a second griev- ance. Jackson was terminated on nonrelated grounds 2 days after she filed her second grievance and that grievance was never processed. Established a Committee re Selection of Crew Leaders? In the fall of 2001 Respondent impaneled an employee committee to provide input regarding its crew leader selection process. Respondent informed the crew leader selection committee10 of the results of the employee committee meeting. The Union ob- jected to examination of the crew leader selection process. Re- spondent replied that the crew leader selection committee would not change the crew leader selection process without negotia- tions. After two meetings, the crew leader selection committee submitted a memorandum to Respondent’s senior vice president of distribution, which included several recommendations on how to improve the crew leader selection process. 9 Jackson’s record showed that she was charged with an accident even though her disciplinary action from that alleged accident, was removed from her file. 10 The crew leader selection committee included three bargaining unit employees among its six members. Findings of Law Workplace Ethics Section 8(a)(1) and (2) In this alleged violation of Section 8(a)(2), my initial inquiry must concern whether Workplace Ethics constitutes a labor organization. If Workplace Ethics were a labor organization, it would be an unfair labor practice under Section 8(a)(2) for Respondent to dominate or interfere with the formation or ad- ministration of, or to contribute financial or other support to, Workplace Ethics. Under the statutory definition set forth in Section 2(5), the organization at issue is a labor organization if (1) em- ployees participate, (2) the organization exists, at least in part, for the purpose of “dealing with” employers, and (3) these dealings concern “conditions of work” or concern other statutory subjects, such as grievances, labor disputes, wages, rates of pay, or hours of employment. . . . . Notwithstanding that “dealing with” is broadly defined under Cabot Carbon, it is also true that an organization whose purpose is limited to performing essentially a managerial or adjudicative function is not a labor organi- zation under Section 2(5). In those circumstances, it is ir- relevant if the impetus behind the organization’s creation emanates from the employer. See General Foods Corp., 231 NLRB 1232 (1977) (employer created job enrichment program composed of work crews of entire employee complement); Mercy-Memorial Hospital, 231 NLRB 1108 (1977) (committee decided validity of employees’ com- plaints and did not discuss or deal with employer concern- ing the complaints); John Ascuaga’s Nuggett, 230 NLRB 275, 276 (1977) (employees’ organization resolved em- ployees’ grievances and did not interact with manage- ment). Electromation, Inc., 309 NLRB 990 (1992). Respondent does not dispute (1) that employees including bargaining unit employees, participated in Workplace Ethics employee review panels and (2) that Workplace Ethics panels dealt with employee concerns not otherwise controlled by the memorandum of agreement. Respondent does dispute that Workplace Ethics panels dealt with management regarding terms and conditions of employment (Crown Cork & Seal, 334 NLRB 699 (2001)). In Crown Cork & Seal, there was no union organizational ac- tivity when a system of employee committees was formed and there was no union organizational activity at any time material to the alleged unfair labor practices. There were a total of seven Crown Cork & Seal committees. Four of the committees dealt with workplace issues including production, quality, training, attendance, safety, maintenance, and discipline short of suspension or discharge. The three re- maining teams existed one administrative level above the four production teams. Those three teams included the organiza- tional review board, the advancement certification board, and the safety committee. The organizational review board moni- tored plant policies to insure uniform administration among the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 200 four production committees. The organizational review board also suggested modifications to plant norms including hours, layoff procedures, smoking policies, vacations and all terms and conditions of employment, and it reviewed production team recommendations to suspend or discipline a team member. The advancement certification board was authorized to administer the “Pay for Acquired Skill program.” It certified that employ- ees had advanced to higher skill levels and recommended pay increases to the plant manager. The safety committee was au- thorized to review production team accident reports and it con- sidered the best methods to ensure a safe workplace. Above those three teams was a 15-member management team and, ultimately, the plant manager. The plant manager had ultimate authority to review all decisions made by the commit- tees. The decisions and recommendations of the three commit- tees (i.e., organizational review board, the advancement certifi- cation board, and the safety committee) were given great weight and rarely overruled. The NLRB found no unfair labor practice in holding that the seven Crown Cork & Seal commit- tees did not “deal with” management within the meaning of Section 2(5). Instead the Board found that the committees were management within the scope of their delegated spheres of authority. In so holding the Board found that the Crown Cork & Seal committees exercised managerial authority at each level. The four production committees exercised authority compara- ble to a front-line supervisor and the three higher-level commit- tees exercised authority that would be clearly supervisory, in a traditional plant setting. I am convinced that application of the Crown Cork & Seal standards, illustrates that Respondent did not engage in 8(a)(2) violations with its Workplace Ethics program. As in Crown Cork & Seal, the Workplace Ethics process resulted in man- agement level decisions at the end of each procedure. Only in the step 1 procedure was there anything approaching “dealing with” management. There the Workplace Ethics coordinator was charged with trying to resolve concerns by talking with management and the employee. However, that does not consti- tute dealing with management under Crown Cork & Seal. There is no mechanism in Workplace Ethics, which involves a pattern, or practice in which the Workplace Ethics panels make proposals to Respondent and Respondent responds to those proposals in word or deed. I find that the General Counsel failed to prove that Workplace Ethics panels constitute a labor organization and failed to prove that Respondent engaged in a violation of Section 8(a)(1) and (2). Section 8(a)(1) and (5) The question here is whether Respondent had an obligation to bargain with the Union regarding Workplace Ethics. As shown above, no union was involved and, of course, there was no obligation to bargain, in Crown Cork & Seal. Although that decision was relevant to consideration of the 8(a)(2) allega- tions, it is not relevant to a consideration of Section 8(a)(5). Here, Respondent had an obligation to bargain with a union regarding working conditions of unit employees. The Union and the General Counsel argued that the Respon- dent had an obligation to bargain before making unilateral changes in working conditions and an obligation to avoid deal- ing directly with bargaining unit employees. Respondent ar- gued that it made no changes. Instead it simply consolidated two programs into one, by uniting Corporate Concerns and EEO. Respondent argued that it had no obligation to bargain because Workplace Ethics involved a purely managerial func- tion. As to the argument that Respondent was obligated to bargain before making unilateral changes, Respondent first notified the Union of its plan to implement Workplace Ethics on May 30, 2001. However, the evidence shows without dispute that Re- spondent did not afford the Union an opportunity to bargain before it implemented Workplace Ethics.11 However, the record shows that Respondent did change its grievance procedure by implementing Workplace Ethics. For example, internal memoranda show that Respondent formerly advised unit employees to exercise their grievance rights under the collective-bargaining agreement before coming to Corpo- rate Concerns (GC Exh. 14).12 After Workplace Ethics was implemented, unit employees including Andrea Jackson, were told they could pursue concerns under Workplace Ethics simul- taneously from or separately with, collective-bargaining griev- ances. Another example of unilateral change is reflected on page 2 of General Counsel’s Exhibit. 14. There two internal memoranda discuss whether to include unit employees on a Workplace Ethics employee panel if the respective employee expressed an obligation to vote for a fellow union member. Another example is shown in Bentina Chisolm’s October 2001 Workplace Ethics report to the Union. There, among other things, Chisolm stated that if a unit employee had a pending concern with Workplace Ethics and a grievance was filed under the memorandum of agreement, the responsible manager could elect not to rule on the grievance while Workplace Ethics in- vestigates the concern. Those examples illustrate that the im- plementation of Workplace Ethics generated new issues and Respondent resolved those issues unilaterally. Moreover, Re- spondent ignored the Union and dealt directly with employees including bargaining unit employees. The employees were independently notified of its Workplace Ethics program and both unit and nonunit employees were included on committees involved in creation and maintenance of Workplace Ethics. The evidence does not support Respondent’s argument that Workplace Ethics is a purely managerial decision making vehi- cle. Instead Workplace Ethics is a grievance procedure vehicle designed to provide employees with a different procedure for 11 See for example, the testimony of Respondent Manager of Labor Relations, Henry Lightfoot, where he testified the Union objected to Workplace Ethics shortly after May 30, 2001, but Respondent contin- ued to develop Workplace Ethics. Lightfoot went on to testify that shortly after the October presentation to the Union, the Union objected to the program and wanted to know if the parties could work anything out. The Union was told that Respondent would go ahead with Work- place Ethics unless the Union had something specific to propose. 12 Two viewpoints are reflected in the memoranda shown on p. 1 of GC Exh. 14, regarding how concerns were formerly handled under Corporate Concerns. Nevertheless both memos make it apparent that changes were made when Respondent advised unit employees under Workplace Ethics that concerns could be filed separately or simultane- ously with grievances. GEORGIA POWER CO. 201 resolving distasteful managerial decisions without resort to the Union. It is well established that the subject of grievances is a man- datory subject of collective bargaining. Hughes Tools Co. v. NLRB, 147 F.2d 69 (5th Cir. 1945); Indiana & Michigan Elec- tric Co., 284 NLRB 53 (1987). Respondent also argued that Respondent does not deal di- rectly with employees during the Workplace Ethics procedure. However, the record evidence shows that Respondent first dealt directly with employees regarding its establishment of Work- place Ethics. For example on June 1, 2001, Respondent advised both unit and nonunit employees of the formation of Workplace Ethics. In its June 1 memo, Respondent informed the employ- ees among other things, that it would use new approaches for resolving employee concerns and it listed some specific exam- ples of how it would employ new approaches. Moreover, as shown in the testimony of Howard Winkler, Respondent has dealt directly with employees set up in five work teams toward what eventually became Workplace Ethics. Allied-Signal, Inc., 307 NLRB 752 (1992). I am convinced that Respondent implemented a new griev- ance procedure called Workplace Ethics without bargaining with the Union and it dealt directly with employees in develop- ing and maintaining Workplace Ethics, in violation of Section 8(a)(1) and (5). Established a Committee Regarding Selection of Crew Leaders? Respondent argued that its employee committee was nothing more than a brainstorming committee and there was no direct dealing with employees on that committee. However, I must keep in mind that Respondent admittedly formed that commit- tee for the specific purpose of considering the unfairness of the crew leader selection process and the crew leader selection process had been formed through negotiations with the Union. Respondent also argued that it assured the Union that the crew leader selection process would not change without negotiations. Respondent’s argument is specious. An employer may not escape accountability by simply telling the Union it does not intent to engage in unlawful activity. In actual practice, Re- spondent selected an employee input committee for the specific purpose of criticizing a procedure it devised through negotia- tions with the Union. Respondent then lent support to the le- gitimacy of that employee committee by informing the crew leader selection committee of the results of the committee’s deliberations. In its argument regarding direct dealing and Workplace Eth- ics, Respondent agreed that a key inquiry into whether it vio- lated Section 8(a)(1) and (5) by seeking information from em- ployees through the input committee, is “whether an em- ployer’s direct solicitation of employee sentiment over working conditions is likely to erode ‘the Union’s position as exclusive representative.” Nevertheless, that is precisely what its action regarding the crew leader selection input committee, tended to accomplish. The employee committee was asked if a procedure Respondent arranged in agreement with the Union was unfair. Obviously, by its actions in putting that question to the commit- tee, the Respondent was holding out that it, but not necessarily the Union, was willing to reconsider the process for selecting crew leaders. Therefore, it should not be blamed for any “un- fairness” that may arise under the current system. Instead, by implication, the only party that should be blamed for any un- fairness was the Union. That evidence shows that Respondent, by seeking information from the input committee, was taking action, which had the tendency to erode the Union’s position. Allied-Signal, Inc., supra. Respondent also argued that it is entitled to seek employee input for bargaining purposes. However, the evidence failed to show that preparation for negotiations was ever a reason behind the input committee. According to undisputed evidence, that committee was formed solely because some senior employees complained about the crew leader selection process. Moreover, Respondent never told the Union that it was seeking informa- tion for bargaining purposes. I find that Respondent engaged in direct dealing with bar- gaining unit employees, in violation of Section 8(a)(1) and (5), by forming an input committee to consider the unfairness of the crew leader selection process and by advising the crew leader selection committee of the input committee’s deliberations. CONCLUSIONS OF LAW 1. Georgia Power Company, is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Electrical Workers Local 84 is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent, by unilaterally changing the grievance proce- dure for bargaining unit employees, by bargaining directly with bargaining unit employees over its Workplace Ethics program, and by bargaining directly with bargaining unit employees concerning its crew leader selection process, has engaged in conduct in violation of Section 8(a)(1) and (5) of the Act. 4. The aforesaid unfair labor practices are unfair labor prac- tices affecting commerce within the meaning of Section 2(6), (7), and (8) of the Act. 5. Respondent did not engage in conduct in violation of Sec- tion 8(a)(1) and (2) as alleged in the complaint. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist therefore and to take certain affirmative action designed to effectuate the policies of the Act. As I have found that as Respondent has illegally changed its grievance procedures by implementing Workplace Ethics with- out bargaining with the Union, it is ordered to cease using Workplace Ethics regarding bargaining unit employees. [Recommended Order omitted from publication.]