Conoco, Inc.

CONOCO CHEMICALS CO. 39 Conoco Chemicals Company, Division of Conoco, Inc. and Local 853, International Chemical Workers Union. Case 5-CA-16085 9 April 1985 DECISION AND ORDER REMANDING BY CHAIRMAN DOTSON AND MEMBERS . , , HUNTER AND DENNIS On 16 February 1984 the Regional Director for Region 5 of the National Labor Relations Board issued a complaint and notice of hearing in the above-entitled proceeding. The complaint alleges that Respondent Conoco Chemicals Company has engaged in and is engaging in certain unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act by refusing to bargain collectively and in good faith with the rep- resentative of its employees. In substance, the complaint alleges that Local 853, the Union, was certified as the exclusive col- lective-bargaining representative of the unit em- ployees on or about 22 March 1977, and has been recognized as such by the Respondent since that time. The parties' latest collective-bargaining agree- ment is effective for the period from 1 July 1983 to 1 July 1985. On or about 13 July 1983 and again on or about 10 January 1984 the Union requested that the Respondent supply certain information con- cerning the processing of a grievance to arbitra- tion. The grievant, John Dornbush, had earlier been suspended on the Respondent's conclusion that he had misrepresented his overtime records. The complaint alleges that the specific information requested by the Union was the "names of the wit- nesses who stated [to Respondent that] Mr. Dorn- bush was not in early" on the day the grievant was said to have falsified the overtime records. The complaint alleges that this information was neces- sary for and relevant to the Union's performance of its duties as the exclusive representative of the unit employees. It is further alleged that since approxi- mately 10 January 1984 the Respondent has failed and refused to supply the Union with the specified information, thereby violating Section 8(a)(5) and (1). By answer filed 2 March 1984 the Respondent admitted in part and denied in part the complaint's allegations. On 16 July 1984 the Respondent filed directly with the Board a Motion for Summary Judgment with exhibits attached. On 20 July 1984 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the Re- spondent's Motion for Summary Judgment should not be granted. On 17 August 1984 the General Counsel filed a brief in opposition to the Respond- ent's motion and a Cross-Motion for Summary Judgment with exhibits attached, and the Union filed an answer to the Respondent's motion and a Cross-Motion for Summary Judgment. On the entire record, the Board makes the fol- lowing Ruling on the Motions for Summary Judgment The Respondent argues in its Motion for Sum- mary Judgment that the Union's original request for information pursuant to the processing of Dorn- bush's grievance involved a number of matters in- cluding the names of witnesses and copies of any statements given by them to the Respondent. The Respondent complied with the Union's information request except as to these two matters. The Re- spondent contends that it is not required to submit either the names of witnesses or their statements because of the likelihood that the Union and/or Dornbush would harass and intimidate the wit- nesses if identified.' The Respondent argues that the Union has demonstrated a pattern of violence and coercion directed toward those who oppose its views, and it produced copies of court documents to support its contention. The documents show that during a 1977 strike against the Respondent the Union was found in contempt of a state circuit court's consent order enjoining the Union and its members from engaging in acts of violence and in- timidation against the Company. Another court document states that during the same strike Dorn- bush was found guilty of causing malicious destruc- tion to the Respondent's property and ordered to pay a $100 fine. Given this background of union harassment and coercion the Respondent concludes that it has a reasonable basis for refusing to identify its witnesses and that it is within an exception to the obligation of an employer to furnish requested information to the collective-bargaining representa- tive. In response to the Respondent's motion, the General Counsel argues that the Respondent's papers submitted to the Board raise issues of mate- rial fact which require a hearing for resolution. Most notably, he contends that the Respondent's claim concerning the likelihood of harassment of ' Although the Respondent insists that the Union is seeking the wit- nesses' statements as well as their identities in this proceeding, the only information sought by the Union which is a subject of the complaint is the names of the witnesses In its brief the Union admits that , although its original request included witness statements, it is no longer seeking pro- duction of such documents Clearly the Respondent is not required to furnish witness statements See Anheuser-Busch. Inc, 237 NLRB 982 (1978). We adhere to the specif- ic language of the complaint with respect to the nature of the requested information in this case 275 NLRB No. 9 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the witnesses is open to serious doubt. There is no record of coercive conduct engaged in by the Union or by Dornbush alone between the time of the strike in 1977 and the present grievance which arose in 1983. Thus the claim of a demonstrated pattern of violence and coercion is alleged to be without basis. Further, the General Counsel con- tends that Dornbush's conviction for malicious property destruction was either withdrawn or not pursued by the state on appeal, although no sup- porting evidence was offered for this claim. The General Counsel concludes that the Respondent has not offered convincing evidence that there is an imminent danger of harassment and intimidation should the witnesses be identified. In addition, the General Counsel argues that the Respondent's denial of the necessity and relevance of the re- quested information in its answer to the complaint places these matters in issue and is further cause for a hearing. He contends that the necessity and the relevance of the identification of witnesses relate to the Union's further evaluation of the grievance and to its preparation for arbitration. In its response to the Respondent's motion, the Union argues that its behavior in 1977 does not provide any supporting evidence for the present claim that the witnesses would be threatened and harassed if identified. It also contends that the in- formation is relevant to and necessary for the Union's performance of its grievance-processing obligations, especially with regard to preparation for the arbitration hearing. On these grounds the Union moves for summary judgment. The General Counsel also moves alternatively for summary judgment for reasons similar to the ones offered by the Union. It is a settled principle that for summary judg- ment to be appropriate the record must show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See, e.g., Stephens College, 260 NLRB 1049, 1050 (1982). In the present proceeding, the Respondent claims that, if identified, its witnesses would be threatened and coerced by the Union and/or Dornbush, and it offers evidence of past conduct of the Union and its members which allegedly demonstrates a capac- ity for such behavior. As the General Counsel argues, the Respondent's evidence is not conclusive with regard to a present danger of witness harass- ment. However, the claim and the supporting evi- dence do raise factual issues with serious ramifica- tions. Further, should the likelihood of witness co- ercion be established at the hearing, the necessity and relevance of the requested information would require further inquiry. Based on the foregoing, we conclude that factual issues are presented in this case which can best be resolved through the conduct of a hearing. Ac- cordingly, the Motion and the Cross-Motions for Summary Judgment are denied.2 ORDER It is ordered that the Respondent's Motion for Summary Judgment be denied. IT IS FURTHER ORDERED that the Cross-Motions for Summary Judgment of the General Counsel and the Charging Party be denied. IT IS FURTHER ORDERED that this proceeding be remanded to the Regional Director for Region 5 for further appropriate action. 2 In his brief to the Board the General Counsel requested that several of the exhibits which the Respondent submitted with its summary judg- ment motion be struck from the record Given our decision above, we see no need to consider the request at this time The General Counsel is granted leave to renew the request before the administrative law judge