Union Carbide Corp.

UNION CARBIDE CORP. Union Carbide Corporation , Nuclear Division and- Oil, Chemical and Atomic Workers Internation- al Union, Local 3-288. Case 10-CA-19224 23 April- 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS - HUNTER AND DENNIS On 29 December 1983 - Administrative Law Judge Leonard. N. Cohen issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief. The Board has considered. the decision and the record in light of the exceptions and -brief and has decided to affirm the judge's rulings, findings, i and conclusions ' and to adopt. the -recommended Order.. We agree with the judge that the Respondent violated Section 8(a)(5) through its ad hoc commit- tee by soliciting and resolving grievances without providing the Union an opportunity to be present at such adjustment-' Our dissenting colleague dis- agrees on 'two bases with this finding with respect - to the Respondent's committee formed to review "Quality Improvement, Opportunities in the K-32 Area." He would first find that the Union waived, its right to be present at the adjustments when the Respondent's labor relations specialist R. L. Phil- lips told union committeeman Mike` Church that a committee was being formed to look- into the gen- eral situation at the K-32 work area and he failed to involve -the Union. Phillips did nbt, however, inform Church that the committee would include unit employees, or that the committee would inter- view unit employees. Nor did Phillips `offer Church an opportunity to participate on the committee. Accordingly, it cannot be said that Church re- ceived actual notice of the committee's planned membership and operations, or that he tacitly waived, by his inaction, the Union's right to be present at the Respondent's adjustment of griev- ances. Church's agreement to hold up filing griev- ances is no basis on 'which to conclude that the Union waived its statutory rights. Our dissenting colleague would also find that the Respondent provided the Union an opportunity to be present at its adjustment of grievances because. i The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to-overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings , 2 We do not pass on whether the Respondent's establishment of the committee, separate from the Respondent's solicitation and resolution of grievances through the committee, independently violated Sec 8(a)(5), as such violation was neither alleged nor litigated 197 the K-32 committee included alternate shop stew- ard Larry Smarsh. . In so finding our colleague relies on the Board's recent decision in Wedgewood Nursing. Home, 273 NLRB 1738, (1985). We find that reliance misplaced. . The Respondent's manager of quality improve- ment Joseph' Hall established the committee to in- vestigate employee complaints about the conditions in the K-32 work area. The Respondent appointed to the committee four management officials, two K-32 unit employees, to select a union steward for the committee and Smarsh was appointed only after one of the K-32 unit employees originally ap- pointed failed to attend a committee meeting. While that meeting was being held the K-32 de- partment head Charles Sweet came over to the K- 32 break area to find a replacement. Smarsh was in the break area at the time and Sweet asked him if he would be willing to replace the other K-32 em- ployee on the committee. Smarsh replied that he would be and began attending committee meetings. The manner of the Respondent's appointment of Smarsh to the K-32 committee demonstrates that he. was appointed because he was a K-32 unit em- ployee, not because of his union involvement. The Respondent did not inform Smarsh.that he was to represent the Union on the committee and Smarsh did not conduct himself as a representative of the Union while serving on the committee. Smarsh did not even report what was transpiring at the com- mittee meetings to any union official. In contrast, there was no evidence that the two shop stewards in Wedgewood who regularly attended employee council meetings participated at those meetings in any - capacity other than as _ union representative. We cannot conclude. based merely on Smarsh's at-- tendance at the K-32 committee meetings that the Union was in any real sense present at those meet- ings. Even assuming that the Union was present at the committee ' meetings through Smarsh, it was not present at the Respondent's adjustment of.griev- ances. The committee did not adjust grievances. It merely offered recommendations for improvements to Quality Improvement Manager Hall. As the Re- spondent's labor relations specialist Phillips conced- ed, the .committee was authorized only to make recommendations to Hall and could take no action itself. The Respondent's adjustment 'of grievances occurred only when Hall determined whether the Respondent would act on the grievances- and rec-. ommendations communicated to him by the' com- mittee.3 In Wedgewood the Board did not reach the s Although Hall implemented changes based on two of the eight rec- ommendations the committee offered, he had already taken action sug- Continued 275 NLRB No. 37 ' 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issue of whether the employee council adjusted grievances at its meetings. Thus, the present facts are distinguishable from those in Wedgewood both as to the representational capacity of the stewards who served on the committees and the committees' involvement in the adjustment of grievances.4 committee.I Thus, in these circumstances , I would find that the Respondent not only met its obliga- tion to notify the Union of the existence of the committee but also provided the Union with an op- portunity to be present at its proceedings . Accord- ingly, I would dismiss the complaint. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Union Car- bide Corporation, Nuclear Division, Oak Ridge, Tennessee, its officers, agents, successors, and as- signs, shall take the action set forth in the Order. MEMBER HUNTER, dissenting. Unlike my colleagues, I would not find that the Respondent unilaterally and without consultation with the Union instituted a committee for the pur- pose of investigating employee complaints about conditions at the work area designated K-32. The facts as found by the judge show that, prior to the formation of the committee, the Respondent's labor relations specialist R. L. Phillips told union com- mitteeman Mike Church that a committee was being formed to look into the general situation of K-32. In my view, the Union received notice of the Respondent's plans to create the committee when Phillips conveyed this information to Church. The record further shows that Larry Smarsh, an alternate steward, was asked by the Re- spondent to be on the committee and that Smarsh attended the meetings and participated in its discus- sions and recommendations. Based on the Board's recent decision in Wedgewood Nursing Home, 273 NLRB 1738 (1985), I would find that the presence of alternate union steward Smarsh at these meet- ings supports a finding that the Union participated in the grievance resolutions undertaken by the gested by three of the other recommendations prior to receiving them and took no corrective action on the remaining three Thus the Respond- ent in no sense perfunctorily adopted the committee 's recommendations 4 We also believe that our colleague's reliance on U.S. Air Force V FLRA, 681 F 2d 466 (6th Cir 1982 ), is misplaced There the court denied the Federal Labor Relations Authority's petition for enforcement of its decision finding that the Air Force had not consulted in good faith re- garding a department reorganization because it had failed to provide the union notice of the reorganization The Authority had found that the only shop steward in the affected department had attended an employee meeting at which the reorganization was announced and discussed, and that after the meeting the shop steward requested and was granted per- mission to review the entire reorganization plan The court denied en- forcement, noting that the Authority's decision contained the contradic- tory factual finding that the union had received actual notice of the reor- ganization The union representative in US. Air Force was a full steward and the only steward in his department Furthermore , it is evident that he assumed he was responsible for serving as the union representative of his department's employees, and he in fact acted as their union representa- tive Accordingly, the case is clearly distinguishable with respect to the representational capacity and conduct of the union representative in- volved i In distinguishing Wedgewood Nursing Home, supra, my colleagues find that Smarsh's attendance at a K-32 committee meeting is an insuffi- cient basis on which to conclude that the Union was "in any real sense present at those meetings " In my view , it is a formalistic exercise, in these circumstances, to attempt to separate the status of employee from that of union representative To repeat the words of one court, I fail to see how Smarsh , as a human being, could attend the meetings as an em- ployee and not as a representative of the union See US Air Force v FLRA, 681 F 2d 466 (6th Cir 1982) Accordingly, I do not agree that Wedgewood Nursing Home is distinguishable on this basis DECISION STATEMENT OF THE CASE LEONARD N. COHEN, Administrative Law Judge. This case was heard before me on August 24, 1983,1 in Oak Ridge, Tennessee. On June 3, the Regional Director for Region 10 of the National Labor Relations Board issued a complaint and notice of hearing based on a charge filed on May 4 by Oil, Chemical and Atomic Workers Inter- national Union, Local 3-288, (the Union), alleging that Union Carbide Corporation, Nuclear Division (Respond- ent), violated Section 8(a)(5) and (1) of the National Labor Relations Act. Specifically, the General Counsel alleges that Respondent violated its bargaining obliga- tions by its inordinate delay in furnishing the Union with requested data relating to safety and health matters, and unilaterally, and without consultation with the Union, in- stituted an ad hoc committee which included member- ship of unit personnel for the purposes of soliciting and adjusting grievances. Respondent timely filed an answer in which it denies the commission of any unfair labor practice. On the entire record, including my observation of the demeanor of the, witnesses, and after due consideration of the briefs filed by both the General Counsel and Re- spondent, I make the following FINDINGS OF FACT I JURISDICTION Respondent is a New York corporation with an office, plant, and place of business located in Oak Ridge, Ten- nessee, where it is engaged in operating certain nuclear production facilities. During the calendar year preceding issuance of the complaint, Respondent sold and shipped finished products valued in excess of $50,000 from its Oak Ridge facilities directly to customers located outside the State of Tennessee. The complaint alleges, Respond- ent by its answer admits, and I find and conclude that Respondent is, and has been at all times material herein, i All dates are in 1983 unless otherwise indicated UNION CARBIDE CORP. 199 an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 11 LABOR ORGANIZATION Respondent admits, and I find and conclude, that the Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. - III. THE UNFAIR LABOR PRACTICES A Background Since the mid-1940s, Respondent has operated, pursu- ant to contracts with the United States Government, three separate Government-owned nuclear research and production facilities in and around the Oak Ridge, Ten- nessee area. The only one of these three involved herein is the Oak Ridge Gaseous Diffusion Plant (ORGDP), a facility engaged in the production of enriched uranium.2 ORGDP or K-25 as it is generally referred to is com- prised of several large process buildings and more than 70 auxiliary and support facilities spread over 640 acres inside the perimeter of the plant. For many years the ap- proximately 1300 production and maintenance employees have been represented by the Union with Respondent and the Union having been parties to a series of collec- tive-bargaining agreements, the latest of which is effec- 1984. tive October 14, 1981, to October 14, 1984. B. The Request For Information On August 30, 1982, Union President G. C. Baker made a written request to Respondent for the following health and safety related data: 1. The morbidity and mortality statistics.on all past and present employees. 2. The generic names of all substances used and produced at the K-25 energy plant. 3. The results of clinical and labortory studies un- dertaken by Respondent of any employee. 4. Certain health information derived from insur- ance programs covering employees and all' informa- tion pertaining' to -illnesses -and accidents under -Workmen's Compensation claims. 5. ••A listing. of contaminants monitored by Re- spondent along with sample protocol. 6. A description of Respondent's hearing conser- vation program, including noise level surveys 7. The source and uses of radiation in the plant and a list of incidents- which required notification to state and federal agencies. 8. A listing of work areas which exceed NIOSH- purposed -heat standards and an outline of the plant's program to prevent heat disease.3 2 ORGDP is just part of the three-plant uranium enrichment complex operated by private industry for the United States Department of Energy (DOE) In addition to Oak Ridge, Tennessee , Respondent operates a similar plant in Paducah , Kentucky, with a third plant operated by Good- year Atomic Corporation located'near Portsmouth, Ohio 3 The Union's request is identical in substance to the health and safety aspects of the Union 's request in both Minnesota Mining & Mfg Co , •261 NLRB 27 (1982), and Colgate-Palmolive Co, 261 NLRB 90 (1982), and, The letter requesting this information further stated: In the past, our requests to the Company for this in- formation have been ignored; therefore, we would appreciate your reply within ten (10) days as to whether the Company plans to deny us the informa- tion again ; or if it will be supplied, the approximate date we can expect to have the data forwarded to us4 • By letter dated `September 9, J. K. Bryson, Respond- ent's superintendent of personnel relations department K-25 plant, acknowledged the Union's request and stated: The Company plans to provide appropriate infor- mation to you after we have had time to fully estab- lish a date that we can forward the information to you. We need additional time to determine the availability and appropriateness of the requested in- formation The requested data was not furnished to the Union until July-14, 1983, some 10-1/2 months after the request. The General Counsel argues that Respondent failed to adduce any evidence at trial to explain or document its undue delay in supplying data necessary and relevant to fulfill its obligation as the exclusive bargaining represent- ative of Respondent's K-25 production and maintenance employees. The General Counsel, in essence, opines that the delay was not occasioned by the complexity of the Union's request, but by a desire on the part of Respond- ent to await the Board's Decision in Goodyear Atomic Corp, supra, and it was only after the Board, on May 31, 1983, affirmed in that case the administrative law judge's conclusion that 'the similarly situated employer must fur- nish the identical data did Respondent, who was by then faced with the imminence of a trial in this matter take the necessary steps to comply. In these circumstances, the General Counsel contends a finding that Respondent violated Section 8(a)(5) and (1) is warranted. Respondent, not surprisingly, views the controversy in an entirely different light While conceding the Union's right to the data, Respondent argues that in the circum- stances of the instant case, it provided the Union with the data in a reasonably prompt fashion and, thereby; lawfully discharged its bargaining obligation. Stated in another way, Respondent argues that-the General Coun- sel has not shown by any scintilla of evidence that Re- spondent could have produced the data any sooner than it did In support of this position, Respondent points to the absence of any evidence that the data was' readily available or that Respondent engaged in dilatory tactics. Further, Respondent observes there is no showing that with the exception of an absence in this request for OSHA reports, iden- tical with the Union's request in Goodyear Atomic Corp, 266 NLRB 890 (1983) _ In 1976 and again in, 1980, the Union made identical requests to Re- spondent Other than in orally informing Baker that Respondent was not certain what information the Union was seeking, Respondent apparently neither made a formal'reply nor furnished any of the information No unfair labor practice charges were filed over these earlier unfulfilled re- quests 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there was an urgency-in fulfilling the request , that it in- volved matters pending in the grievance arbitration pro- visions, or that it involved a matter currently or forth- coming in' any negotiations between the parties. In my view, the record - evidence does not establish that Re- spondent acted in bad faith in adopting and instituting the methods described below for complying with the Union's request. The uncontroverted evidence discloses that on Sep- tember 13, 1982, Bryson , the management official initial- ly responsible for overseeing Respondent's response, to the Union's request, held a .meeting with the managers of employee relations, industrial relations, and radiation safety. Some questions were raised at this meeting relat-_ ing to where the data sought , which was both complex and crossed departmental lines, would come from It was concluded at that time that each manager would need additional time to -study and assess the matter. After speaking individually with the managers of in- dustrial hygiene and radiation safety , Bryson had a meet- ing with his two superiors, Harry Conner, manager of employee relations and Robert Worrell , manager of labor. relations for the nuclear division . Byrson briefed them as to some of the potential problems they might experience with availability of the , requested data . Bryson was in- structed to continue a review of the matter.. On November 23 Bryson met with the manager of ra- diation safety, ,Ted Butts . Butts indicated to Bryson that they had evaluated the existing data to be utilized in pre- paring a response , and it appeared that Respondent's an- ticipated response could include some 250,000 pages and would this involve a major undertaking of both time and money. - After communicating with his counterpart at Respond- ent's Paducah, Kentucky facility about how they handled a similar request for data, Bryson convened a meeting on - December 3, with all individuals involved in preparing a response to the Union's request. During -this meeting, the participants reviewed all the data that had been prepared by two experts as of that time. The participants then dis- cussed the need for developing some type of methodolo- gy for both the. gathering of the data and estimating the cost of such a mammoth effort. In late February 1983, Conner called Union President Baker and stated that he had received a report that the Union was contemplating filing unfair labor practice- charges regarding Respondent's failure to respond to the Union's request . Conner indicated that he was handling this call since Bryson was leaving the department and, therefore, the project, and that Bryson's replacement, Donald Blanton, was not yet -familiar with the issue. Conner informed Baker that Respondent had spent a considerable amount of time working on the Union's re- quest, and that while he was not in a position to give Baker an official response as to what Respondent 's ulti- mate reaction would be, he, nonetheless , wanted Baker to know that they had not ignored the Union's request. Baker responded by simply stating , "okay " Baker -was apparently unpersuaded by Conner's re- marks, for on March 1 . he filed unfair labor practice charges against Respondent alleging that Respondent, in violation of Section 8(a)(5), failed to supply it with health and safety information necessary for it to effec- tively represent their bargaining unit members. By letter dated April 15 , 1983, Worrell wrote a letter to the Regional Director for Region 10 in which he stated, inter alia: Since receiving the Union's letter, the Company has been actively reviewing its files with reference to the many kinds of information requested to deter- mine whether such records are available and if so, in what form. It has also been necessary to take into account such factors as proprietary information, se- curity consideration, and employee privacy consid- erations, including the specific application of the Privacy Act as it affects our operations as a Depart- ment of Energy contractor . We have, in addition, considered the man-hours and expense involved in screening and reproducing the vast amount of mate- rial which the Union seeks, and it is our intention to recover reasonable cost. In light of the above, we would suggest that the Board not pursue this matter further until the Com- pany has had an opportunity to complete its internal screening of the various records. We will then meet with the Union in the near future to discuss this matter further. - On April 26, the Regional Director notified the parties that the charge had been withdrawn with his approval. At some point during March, Donald Blanton replaced Bryson as Respondent's superintendent of personnel rela- tions. In his new capacity, Blanton had numerous con- versations with the various individuals involved in com- piling the requested data, and on May 3 , a large meeting was convened for all interested officials, including for the first time a classification officer who would have to determine whether any of this information was of a con- fidential or secret nature . During this comprehensive meeting, the participants reviewed all data that had al- ready been compiled. As a result, Respondent issued an order to all field personnel instructing them to start com- piling full copies of all the information requested. On May 5, the instant charge was filed. In addition to the refusal-to-furnish allegation, this charge also alleged that Respondent further violated Section 8(a)(5) by insti- tuting unilateral changes in the working conditions. After receiving copies, of the charge, Blanton was instructed by Worrell to continue forward with the processing and collection of the data as expeditiously as possible. On June 20, another meeting was convened for all in- terested officials of Respondent . At this meeting, the par- ticipants reviewed in detail all the 'information gathered and at this time determined in their judgment that the furnishing of this data would comply in full with the Union's request. Sometime between the conclusion of this meeting and June 30, Blanton called Baker and indicated that Re- spondent was ready to meet with the Union for the pur- pose of submitting to them the requested data. The par- ties subsequently arranged July 14 as the date for such a meeting. . UNION CARBIDE CORP On that date the parties met and Respondent did in fact turn over to the Union a rather voluminous set of documents which the Union concedes fulfilled its August 30 request. To briefly summarize the above, within days of the Union's August 30 letter, responsible officials of Re- spondent commenced what ultimately proved to be a most difficult, time-consuming, and expensive task of gathering the requested data. This task continued appar- ently without interruption until the end of June of the following year when all the voluminous data was finally compiled, reviewed, and approved for release. While one can speculate that Respondent 's effort was somehow inadequate and that 10 months was too long a time frame in which to respond to the Union 's request, such speculation is not supported by the uncontroverted record evidence here . There was simply no showing that the procedures established by Respondent for handling the request were not reasonable or that Respondent could have done anything else to produce a faster result. Perhaps the entire matter could have been handled without resort to litigation had Respondent been just a little more forthcoming in its communications with Union President Baker as to its intention to comply with the Union's request Instead, Respondent at no time prior to late June ever indicated directly to the Union that it was'already in the process of gathering the needed data and would fully comply with the Union's request in the near future. In view of Conner's rather ambiguous state- ment to Baker on February 24, to the effect that while Respondent was not in the position to give a response as to its intention, it was, nonetheless, giving the Union's re- quest its "serious consideration," it is not surprising that Baker could have believed that Respondent would no more comply with this request-than it had with the Union's two earlier requests for the identical information. This lack of candor on the part of Respondent does not, however, alter the conclusion that there is no showing that Respondent was in any way dilatory in its actual handling of the request. Accordingly, in view of the above and in the absence of any evidence that the Union was prejudiced by the delay, I recommend that this com- plaint allegation be dismissed.5 C. Solicitation of Grievances In late 1982, it came to management 's attention that employees were perceiving assignments to K-32 , an area composed of two separate departments (K-31 and K-33) within the overall K-25 division , as undesirable and/or punitive. In order to determine the underlying cause for these perceptions and as a way of finding solutions to any particular problems which would be uncovered, Re- spondent, by Joseph Hall, manager of quality improve- ment at K-25 created and staffed a committee to review "Quality Improvement Opportunities In The K-32 Area." This committee which was composed of two nonsupervisory nonunit K-32 employees , two K-32 unit. employees s and supervisors and/or management officials 5 ACF Industries, 234 NLRB 1063, 1076 (1978) 6 One -of the two unit employees who served on the committee was Larry Smarsh, a welder in the maintenance department and since 1980 an 201 employed in various capacities within Respondent's total operation, met on four or more separate occasions be- tween December 6, 1982, and January 16, 1983. Based both on lengthy discussions - during these meetings, as well as on interviews and discussions by committee members with employees assigned to the K-32 area, the committee prepared, individually signed and submitted to Hall a 4-page typed report dated January 'l6.' According to this document, the committee concluded, inter alia, (1) that while employees in payroll classifications perceived that the maintenance area of K-32 was undesirable, these same employees did not view the K-32 operations area in the same negative light ; (2) there appeared to be a rea- sonable basis to believe that some assignments of unit employees to the K-32 area were made for disciplinary reasons; and (3) the relative isolation of the work area, the noisy and hot environment, and the physically de- manding tasks of many of K-32's particular jobs ap- peared to have a major role in the employees' negative perception. , The committee further cited eight specific concerns re- lating to work in the K-32 area. These eight were: (1) the excessive delays encountered when it was necessary for security. inspectors to open portal 8 at other than reg- ular shift change times; (2) the K-31 maintenance lunch- room did not have a microwave oven; (3) tools and ma- terials- were not of top quality for industrial use, (4) the women's shower facilities were inadequate for the number of women requiring their use; (5) drinking water was rusty on Mondays, (6) the vending machines were stocked with old goods that did not sell elsewhere in the plant; (7) there was no maintenance shop in K733 which would allow shop type maintenance to be performed out of the heat and noise ; and (8) the existing transportation did not permit employees to get to and from the cafete- ria within the 30-minute lunch period. The committee made the following three general rec- ommendations : ( 1) management should evaluate the eight specific concerns cited above and make necessary im- provements, (2) the practice of using potential transfers to K-32 as a real or perceived threat to encourage im- proved performance must be stopped,- and (3) deliberate efforts should be made to inform K-25 employees of the importance of the work at K-32 and of the improve- ments that were being made in those working conditions. As a direct result of. the committee's mid-January report and recommendations, Respondent, shortly there- after, made certain changes to improve the K-32 em- ployees' working conditions. Thus, Respondent com- menced assigning on a regular basis a security inspector to portal 8 during- the lunch period. This change permit- ted employees assigned to K-32 to enter and leave at lunch hour without wasting excessive time.? Further, alternate steward On the day of the first meeting the department head first approached a maintenance mechanic about serving on the commit- tee When that employee who was not a union official refused , the de- partment head asked Smarsh to serve ' The issue of placing a security guard on portal 8 of K-32 had been the subject of some discussion between union and management officials prior to the first meeting of the ad hoc committee In mid-1982, Baker had several conversations with Bryson regarding a number of employees Continued 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent began furnishing K-32 employees with a better grade of tools and materials. About this same time, Respondent made certain other improvements in its K-32 operations. These changes in- cluded the purchase of a microwave oven for the K-31 maintenance lunchroom, installation of filters on the drinking fountains, and repairs to the women's shower room. Although each of these changes had been part of the committee's recommendations, the record evidence. establishes that these changes had not only been contem- plated by_ Respondent prior to these meetings, but that Respondent had actually placed the necessary work and/or purchase orders prior to that time as well. The record further indicates that Respondent took no correc- tive action on any of the other recommendations offered by the committee. At some unidentified point between March 1, the date the original charge was filed, and May 4, the date the second charge • was • filed, Baker received phone calls from several employees informing him for the first time that some of his unit employees had participated in meet- ings with management to discuss problems at K-32. Baker was told that as a result, a security guard had•been assigned to portal 8 at the lunch hour. One or more of these callers wondered why this committee - had been able to accomplish something while the Union had not been able to solve the same problem. Shortly thereafter, Baker filed the instant unfair labor practice charge. The General Counsel, citing Dow Chemical'Co.,B con- tends that in unilaterally instituting what he designates as a "Quality Circle Program," Respondent has unlawfully and in violation of Section 8(a)(5) solicited and adjusted grievances without permitting the collective-bargaining representative of its employees to be present. Respondent's defenses to this allegation are. many and varied. I will deal here only with those of a more serious nature. First, it disputes the General Counsel's designa- tion of the December 1982-January 1983 committee as a "Quality Circle Program." Instead,, it argues that this ad hoc-committee was merely part of an overall Quality As- surance and Improvement Program that had been in who experienced long delays in trying to use portal 8 doing the lunch period While Bryson initially indicated that he believed that he could cure the problem, he later informed Baker that in Respondent 's view, there were simply not enough problems to justify placing a security offi- cer at the portal - In the late fall of 1982 before the ad hoc committee had been created, Ivan Miller, an alternate committeeman , or the union official to who stewards report, complained to R L - Phillips, labor relations specialists, about delays K-32 employees were experiencing at portal 8 Phillips told Miller that he would look into the matter Some weeks later, Miller's superior , committeeman Mike Church, raised this same problem with Phillips On this occasion , Phillips told Church that a committee was being formed to look into the general situa- tion at K-32, and he asked Church to hold up filing any grievances to see what the committee could do Church agreed - While the Union had never filed a grievance over the delays experi- enced at portal 8, the Union had over the past several years filed and processed grievances concerning similar delays experienced at other por- tals or, gates 9 227 NLRB 1005 (1977) on remand from Steelworkers Y. NLRB, 536 F 2d 550 (3d Cir 1976), in which the court granted a petition for review and vacated an order of the Board dismissing the complaint in 215. NLRB 910 (1974) effect since the early 1970s without any participation or objection by the Union.9 In this regard, Respondent introduced extensive docu- mentary evidence establishing that under the guidelines devised by the Department of Energy, Respondent has for almost a decade maintained a• Quality Assurance and Improvement Program for the purpose of "deliberately and systematically assuring the performance of the equip- - ment and facilities." 10 While this mandated program was, and no doubt is-of vital importance to Respondent, in a practical sense, it has had over the years no direct impact on either unit employees or their bargaining represenative. Its thrust from the very beginning was and remains product and not employee oriented. Thus, the reason the Union during the past decade had never shown any interest in any facet of this program is readily understandable. The program as it existed simply did not concern the Union's unit employees. - Respondent did, however, present evidence that short- ly after the ad hoc committee submitted its findings and recommendations, it proposed to modify -its -existing Quality Assurance and Improvement Program by creat- ing "quality improvement task teams" which would in- clude unit members to "work on quality related problems or concerns." Again, the Union, believing that these teams would not concern themselves with unit employ- ees' working conditions, indicated that it did not wish to participate in any way. It is a quantum leap to argue as does Respondent that the Union's disinterest in employ- er-sponsored programs relating solely to product quality acts as a waiver on the Union's part to object to the uni- lateral institution of a program designed to solicit and adjust grievances regarding working -conditions. Such a quantum leap is simply not warranted on these facts. Respondent- next argues that its conduct in instituting the December-January ad hoc committee was privileged, by both the management-rights clause and the grievance- arbitration provisions in the collective-bargaining agree- ment. With regard to the former, Respondent takes the' position that the contract's language providing that it has the exclusive authority to assign and delegate work to the unit employees permitted it to assign two unit em-_ ployees to any task it desired, including to membership on an ad hoc committee established to investigate prob- lems at K-32. With regard to the grievance-arbitration 0 In this regard, Respondent presented evidence that the phrase "Qual- ity Circle" is a term of art that refers to employee peer groups of varying sizes which meet on an ongoing or continuous basis where they deal with work-related subjects determined solely by the particular 'peer group Since the December-January committee was an ad hoc committee as- signed by- management to study a specific problem or subject, it cannot be called, according to Respondent, a Quality Circle While this argu- ment may well be true, it does not, of course, compel the conclusion Re- sporident urges that this committee then falls neatly within Respondent's ongoing Quality Assurance and Improvement Program 10 A March 1982 Department of Energy Order defines quality assur- ance and its objectives in the following terms "Quality Assurance All those plans and systematic actions necessary to provide adequate confi- dence that a facility, structure, and systems or components will perform satisfactorily in service Objectives To ensure that management's inten- tions and support are provided at all levels within DOE and contractor organizations as necessary for effective quality assurance programs defini- tion and execution " UNION CARBIDE CORP 203 provisions, Respondent takes the position that the lan- guage in the first step providing that an employee having a request or complaint will first discuss the matter with his supervisor permitted the unit employees to, discuss during the ad hoc committee meetings their requests or, complaints directly to management without the interven- tion of the Union. I find these arguments to, be totally lacking in merit. The record indicates that at no time prior to Decem- ber 1982 had Respondent ever created or instituted any committee, whether ad hoc or otherwise, to study work and/or product related problems that included any unit employees. Not surprisingly, in view of its unprecedent- ed action in creating this ad hoc committee, there is no language in the collective-bargaining agreement specifi- cally covering the creation and composition of such panels or committees. Even giving the management. right's clause its broadest possibly reading, it is clearly not reasonable to infer that the Union ever contemplated waiving its rights -to play an active role in presenting grievances to management. To do otherwise would be to find that the Union has abdicated a major portion of its responsibility in representing its members. Likewise, Respondent's overly broad reading of the language in the first step of the grievance procedure is a totally unwarranted and strained interpretation As former Member Fanning stated in-rejecting a similar ar- gument in his dissent in the first Dow Chemical case, supra, "There is nothing in the contract remotely sug- gesting that the union contemplated any adjustment of grievances at a level above that of immediate supervisor. or with an impact beyond the authority of the first line supervision without its participation." - Finally, Respondent contends that by virtue of both al- - ternative steward Smarsh's membership on the Decem- ber-January committee and union committeeman Mike Church's prior knowledge of the committee' s ongoing work, the Union not only had notice of the committee's existence, but actually participated in its processes. While somewhat more troublesome than Respondent's other ar- guments, I, nonetheless, find it to be without merit. The evidence with regard to Church is recited in full at footnote 7 above. From Phillips' own testimony, it does not appear that Church was told that the committee that was being formed to look into problems relating to K-32 would include either any union or unit representa- tives. In these circumstances, it can hardly be said that Church was either fully aware of Respondent's conduct or could have effectively waived in his official capacity as union committeeman Respondent's failure to notify the Union of its unilateral action. While Smarsh did fully participate in the committee meetings, his position as alternative job steward played no role whatsoever in his entirely fortuitous selection. The only reason he was even asked' to be a member of the committee in the first place was because the original employee requested by management refused. Why Smarsh did not inform union President Baker or ' any other union official of what was transpiring at these meetings is an open question subject to much specula- tion. Perhaps as the lowest ranking official in a unit of over 1200, he did not fully and properly understand his position or the Union's role as the exclusive bargaining representative of all unit employees Even more likely, however, is the possibility that he was under the impres- sion that Baker already knew of the committee's actions., While such speculation may be interesting, it does noth- ing to explain Respondent's total" and intentional failure to notify the Union of its intention with regard to inves- tigating the working conditions of unit employees in. K- 32 This failure is difficult to understand and impossible' to justify in view of the fact that Baker, a full-time union president of a local only representing employees of Re- spondent, had been both active and vocal in advocating the interests of K-32 employees. In fact, one of the more serious concerns raised at the ad hoc committee meet- ings, that of placing a guard at portal 8, had originally been 'raised by Union President Baker himself less than 6 months prior to the first committee meeting. In these cir- cumstances, it seems reasonable to infer that Respond- ent's intentional. failure to notify the Union was quite simply an attempt on its part to bypass its employees': collective-bargaining representative and instead deal d_i-- rectly with the employees. In light of the above, it would be unjust to allow Respondent to escape its re- sponsibilities and obligations on the entirely 'fortuitous event that one of the unit employees selected for service on the ad hoc committee just so happened to be a low7 level union official. Accordingly, I find and conclude that Respondent violated Section 8(a)(5) and (1) by solic- iting and adjusting grievances through its ad hoc com- mittee for "Review of Quality Improvement Opportuni- ties in the K-32 Area"-without providing the Union an opportunity to be present. i i CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of the Act. 2. The labor organization involved is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By unilaterally instituting and maintaining a pro- gram whereby it solicited and adjusted grievances with- out permitting the collective-bargaining representative of its employees to be present, Respondent violated Section 8(a)(5)-and (1) of the Act 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices affecting commerce, I shall recom- mend that it cease and desist therefrom and take certain affirmative actions designed to effectuate the policies of the Act, including posting the attached notice marked "Appendix." Although it is necessary and appropriate to require that Respondent discontinue its ad hoc committee for "Review of Quality Improvement Opportunities in the K-32 Area," Respondent is not foreclosed from institut- 11 Dow Chemical Co, supra, Kaiser-Permenete Medical Care, 248 NLRB 147 (1980) - 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing a similar program in the future which does not suffer the legal infirmity found here, by confining such a pro- gram to limits consistent with its duties under the Act toward its employees and their collective-bargaining rep- resentatives. ORDER The Respondent, Union Carbide Corporation, Nuclear Division, its Oak Ridge, Tennessee, officers, agents, suc- cessors, and assigns, shall12 1. Cease and desist from (a) Instituting and maintaining a program to solicit bar- gaining unit grievances and to adjust bargaining unit grievances without giving the Union an opportunity to be present, except as permitted in the collective-bargain- ing agreement with the Union or as the Union may agree to permit in the future. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act. (a) Discontinue the committee for "Review of Quality Improvement Opportunities in the K-32 Area" as it ap- plies to employees in the bargaining unit represented by Oil, Chemical, and Atomic Workers International Union, Local 3-288. (b) Post at its Oak Ridge, Tennessee K-25 facilities copies of the attached notice marked "Appendix."ia Copies of said notice, on forms provided by the Regional Director for Region 10, after being signed by Respond- ent's authorized representative, shall be posted by Re- spondent immediately upon receipt of, and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or cov- ered by any other material. 12 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 1 s 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 Judgment (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violation of the Act other than those found in this decision. of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " 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 institute and maintain a program to so- licit bargaining unit grievances and to adjust bargaining unit grievances without giving the Oil, Chemical and Atomic Workers International Union, Local 3-288 an opportunity to be present except as permitted in our col- lective-bargaining agreement with the Union or as the Union may agree to permit in the future. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the Act. WE WILL discontinue the committee for "Review of Quality Improvement Opportunities in the K-32 Area" insofar as it applies to employees in the bargaining unit represented by Oil, Chemical and Atomic Workers Inter- national Union, Local 3-288 UNION CARBIDE CORPORATION, NUCLEAR DIVISION