Nuclear Fuel Services, Inc.

NUCLEAR FUEL SERVICES 705 Nuclear Fuel Services, Inc. and Oil, Chemical & Atomic Workers International Union and its Local 3-677 Oil, Chemical & Atomic Workers International Union and its Local 3-677 and Nuclear Fuel Services, Inc. Cases 10-CA--21909 and 10-CB- 4801 13 October 1987 DECISION AND ORDER BY MEMBERS BABSON, STEPHENS, AND CRACRAFT On 26 March 1987 Administrative Law Judge J. Pargen Robertson issued the attached decision. The General Counsel and the Respondent-Employer filed exceptions and a supporting brief, and the Re- spondent-Union filed a brief in opposition to the Respondent-Employer's exceptions' and in support of the General Counsel's exceptions. The National Labor Relations Board has delegat- ed 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,2 and conclusions3 and to adopt the recommended Order as modified.4 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that: i The Respondent-Union moved to strike the Respondent-Employer's exceptions and brief on the grounds that they do not comply with Sec 102 46 of the Board's Rules and Regulations Although the Respondent- Employer's exceptions and brief do not comply with the literal require- ments of Sec 102 46, we find that the deficiencies are insufficient to justi- fy sinking them 2 The Respondent-Employer has excepted to some of the judge's credi- bility findings The Board's established policy is not to overrule an ad- ministrative law judge's credibility resolutions unless the clear preponder- ance 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 S We find it unnecessary to pass on the General Counsel's and the Re- spondent Union's contention that the employees who were deprived of their vacation benefits as a result of the Respondent Employer's unilateral change in the interpretation of the relevant contract provisions are de- rivatively discnminatees under Sec 8(a)(3) As noted by the General Counsel in her brief in support of exceptions, finding an 8(a)(3) violation would not materially affect the remedy 4 We have modified the judge 's recommended Order to remedy more fully the violations found The General Counsel requests that the remedy include a visitatonal clause authorizing the Board , for compliance purposes, to obtain discov- ery from the Respondent under the Federal Rules of Civil Procedure under the supervision of the United States court of appeals enforcing this Order Under the circumstances of this case , we find it unnecessary to include such a clause Accordingly , we deny the General Counsel's re- quest A. The Respondent, Oil, Chemical & Atomic Workers International Union and its Local 3-677, its officers, agents, and representatives, shall take the action set forth in the Order. B. The Respondent , Nuclear Fuel Services, Inc., Erwin, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph II, 2(a). "(a) Resume its former policy of establishing new anniversary dates when required by an ab- sence because of a strike or otherwise , to the earli- est date in which the respective employee worked 1000 hours following that employee's last anniver- sary date and recalculate any anniversary dates that have been unlawfully changed." 2. Substitute the following for paragraph II, 2(b) and renumber the present footnote 5 as 6. "(b) Restore to each employee all vacation time that each respective employee in the bargaining unit described below lost because of its unlawful change in the method of setting new anniversary dates, or otherwise make them whole , with interest to be computed in the manner prescribed in New Horizons for the Retarded.5 "s In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 US C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) " 3. Substitute the attached notice marked "Appen- dix B" for that of the administrative law judge. APPENDIX B 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 ordered us to post and abide by this notice. WE WILL NOT unilaterally change a method of determining new anniversary dates for employees in the above-described bargaining unit without first notifying and negotiating with Oil, Chemical & Atomic Workers International Union and its Local 3-677, the exclusive collective-bargaining repre- sentative of the unit employees. WE WILL NOT institute or maintain an employee concern program without giving the Union an op- portunity to negotiate regarding that program. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- 286 NLRB No. 71 706 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cise of the rights guaranteed you by Section 7 of the Act. WE WILL credit each employee in the below-de- scribed bargaining unit, all vacation eligibility time deprived to each respective employee because of our action in unilaterally changing the method of determining new anniversary dates following a strike or will otherwise make them whole, with in- terest: All production and maintenance employees, laboratory assistants, laboratory technicians, plant clerical employees, surveillance techni- cians, and radiation monitors employed by the Employer at its Erwin, Tennessee facility, but excluding all office clerical employees, labora- tory employees other than laboratory assistants and laboratory technicians, technical, profes- sional and sales employees, foreman, watch- men, guards and supervisors as defined in the Act. WE WILL resume our former policy of establish- ing new anniversary dates when necessary, follow- ing employee absences in accord with past prac- tice, and recalculate any anniversary dates unlaw- fully changed. WE WILL discontinue the employee concern pro- gram as it applies to employees in the bargaining unit represented by Oil, Chemical & Atomic Work- ers, International Union and its Local 3-677. NUCLEAR FUEL SERVICES, INC. Mary L. Bulls, for the General Counsel. Lawrence S. Wescott (Venable, Baetjer & Howard), of Bal- timore, Maryland, and Neil J. Newman, of Rockville, Maryland, for the Respondent Employer. Karen Yablonski-Toll (McKendree & Toll), of Denver, Colorado, for the Respondent Union. DECISION STATEMENT OF THE CASE J. PARGEN ROBERTSON, Administrative Law Judge. These cases were heard in Erwin, Tennessee , on 2 Feb- ruary 1987. The charge in Case 10-CB-4801 was filed by Nuclear Fuel Services, Inc. (Respondent Employer) on 7 July 1986. The charge in Case 10-CA-21909 was filed by Oil, Chemical & Atomic Workers International Union and its Local 3-677 (Respondent Union) on 28 July, and amended on 8 September 1986. FINDINGS OF FACT In their answers, Respondents admitted that Respond- ent Employer is an employer incorporated in Maryland with a facility located at Erwin, Tennessee, where it is engaged in the business of manufacturing nuclear fuels and that Respondent Employer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the National Labor Relations Act (the Act). Re- spondents also admitted that Respondent Union is a labor organization within the meaning of Section 2 (5) of the Act. The Respondents admit that the Union is, and has been since about 1972, the representative of a majority of the employees in the bargaining unit described below for the purposes of collective bargaining: All production and maintenance employees, labora- tory assistants, laboratory technicians , plant clerical employees, surveillance technicians, and radiation monitors employed by the Respondent Employer at its Erwin, Tennessee, facility, but excluding all office clerical employees, laboratory employees other than laboratory assistants and laboratory tech- nicians, technical, professional and sales employees, foremen, watchmen, guards, and supervisors as de- fined in the Act. I. THE ALLEGED UNFAIR LABOR PRACTICES The General Counsel alleges that Respondent Union violated Section 8(b)(3) by refusing to sign, since 25 April, a collective-bargaining contract agreed to by Re- spondent Union and Respondent Employer on 30 March 1986. The General Counsel alleges that Respondent Employ- er violated Section 8(a)(1) and (5) by unilaterally increas- ing the eligibility periods for employees' vacations and by unilaterally developing and implementing an employ- ee concern program. Respondent Union's district director, John Williams, testified that the Union's collective-bargaining contracts with the Employer have not materially changed regard- ing vacation eligibility since 1973. Before 1973 employ- ees were required to work 12 consecutive months to qualify for vacation time in the next 12 months. The word "consecutive" was removed in 1973. Since 1973 the agreements have provided: An employee who has worked not less than one thousand (1000) hours during a period of not less than twelve (12) months following the anniversary date of his/her last regular employment shall be eli- gilbe for of vacation... . On 15 May 1985 Respondent Union struck at the expi- ration of the collective-bargaining contract with the Re- spondent Employer. Negotiations, which commenced around 1 March 1985, were not successful until after the strike. The strike ended and the employees began return- ing to work on 7 April 1986 after Respondents reached agreement on a new collective-bargaining contract. The employees ratified that agreement on 30 March 1986. Subsequently, the Union refused to sign the new col- lective-bargaining contract. The evidence shows that their refusal stemmed from what was perceived to be a change by Respondent Employer in interpretation of the terms of the new contract.' ' Respondent Union's attorney argued that subsequently the Union has discovered changes in the actual language of the printed contract Re- Continued NUCLEAR FUEL SERVICES 707 The record developed that the Union perceived a change in the way the Employer would apply the con- tract's vacation eligibility provisions. The contract, which is in evidence, reflects the same language regarding vacation eligibility as was found in prior contracts: An employee who has worked not less than one thousand (1000) hours during a period of not less than twelve (12) months following the anniversary date of his/her last regular employment shall be eli- gible for week(s) of vacation. .. . The record developed two areas of concern regarding vacations following the 1985-1986 strike. The first area of concern deals with changes in em- ployees' anniversary dates. Under normal conditions, when an employee worked continuously, the employee's anniversary date would fall on the anniversary of the date the employee started work with the Respondent Employer. However, before 1986 Respondent Employer established a practice of changing employees' anniversa- ry dates when employees were out of work during the period of their normal anniversary date. In 1979 when the employees struck, Respondent Employer permitted employees to establish new anniversary dates when nec- essary. A new date was established immediately on the respective employee accumulating 1000 work hours after his/her last anniversary date. According to Respondent Union and the General Counsel, that same practice should have been followed when employees returned from the strike in 1986. Respondent Employer argues that it and Respondent Union negotiated a change in that practice that required both 1000 hours and 12 months in order to set a new anniversary date. Secondly, under normal conditions an employee was permitted to take his/her vacation during the 12 months beginning on his/her anniversary date immediately fol- lowing the 12-month period during which the vacation was earned. For example, if an employee's anniversary date fell on 31 December and that employee worked 1000 hours during the 12 months" of work ending on 31 December 1983, the employee would have until the end of the day on 31 December 19134 to use the vacation earned in 1983. Because of the strike in 1985-1986, the time in which employees were permitted to use vacation time earned before 15 May 1985 was changed. The Em- ployer and the Union dispute whether the change was in accord with their collective-bargaining agreement. The record evidence shows confusion as to what the Employer said during negotiations about vacations. Union Respresentative Larry Abel, one of the Union's negotiators, illustrated that confusion in the following testimony: A. Toward the end of the negotiations, toward the end of the strike, I'd say sometime in February of '86 a question concerning the thousand hours. spondent Employer disputes that contention However, the record is clear that the Union's refusal to sign the new collective-bargaming con- tract was based on its belief that the Employer was changing its interpre- tation, as opposed to the written language, of the agreed-to contract Q. Do you recall who was present at that par- ticular session? A. Yes. Myself, Mr. Tolley, Mr. Peterson, Mr. Birchfield, and Mr. Metcalf for the union. For the company, Mr. Bailey, Mr. Booth, and Mr. Yonka. Q. As best as you can recall Mr. Abel, can you tell us what was said, you remember being said and by whom on that occasion during the session? A. Mr. Tolley had asked, we were like, say wind- ing down toward the end of the strike. We had talked backwards and forwards on settling and we had been fairly close to settling at that time. Mr. Tolley had brought up the question about vacation and about the thousand hours and about how long the people would have to take their vacation after the strike ended. And Mr. Bailey replied that we would have the 10-1/2 months, or he didn't actually say 10-1/2 months, he said "Whatever time that you all, the strike ends, you'll have the length of time to take the vacation you currently had." And he said "The other vacations, once you complete your thousand hours, then you'll be eligible for your new anniversary date 11 change and you'll have a new anniversary date" and he used Mr. Tolley as an ex- ample, uh, he said, "Mr. Tolley come to work there in January, so his, he asked Lonnie how much time he had left from the old vacation." Lonnie told him best of my recollection he told him he had a week. And he told him, he explaining to him, he said "You'll have whatever time you're on strike, you'll have that length of time to take that week and then you'll have he said you'll go from January to May 15 when we struck. He said you'll count your hours there, which that's somewhere around 6 or 700 hours. He said then when we go back to work once you have, attained your thousand hours that'll by your new anniversary date." And he explained that to us which, we all agreed with him. Union President Lonnie Tolley testified that employer spokesman Roland Bailey said vacations would be han- dled in the same manner as following the 1979 strike. In rebuttal testimony, Tolley testified regarding a 29 March 1986 negotiating session as follows: Q. Did he [Roland Bailey] say how long you would have to take the 1984 vacations? A. I don't remember, I don't remember him saying how long it would be. He was talking at that time to Mr. Abel. But he mentioned on two or three different occasions that the vacation would be same as it was in '79. Q. Okay. How long did you understand that the employees would have to take their vacation after the strike ended? A. My understanding was th- . . . but I was in on agreement in '79 that they would have the length of time that they would have had before the strike. Q. And did you explain it to the employees that way? 708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD A. No, because, I didn't know whether the com- pany realized it was that way, because Roland kept talking about the length of the strike, during negoti- ations. Q. To talk about the length of the strike? A. Roland kept talking about 10-1/2 months when he would talk about it. Q. And what did he . . . what would he say about that? A. He said it should [be] the length of the 10-1/2 months we was on strike to take vacation. But Sunday morning we had the . . . in '79 we had .. . the time that we would've had taken had there not been a strike. Union Committeeman Roger Birchfield testified that about a 5 February 1986 negotiation session: Again Lonnie [Tolley] asked the Company, the people that had old vacation . . . had earned vaca- tion, he asked them how much time that they would have to take that vacation when we return to work. Mr. Bailey responded, that they would have the same amount of time to take it when we return to work as they would have had had we not went on strike. Union Committeeman Larry Peterson testified that he recalled the Employer explained that returning strikers would have 12 months to take their previously earned vacation. Roland Bailey, the Employer's chief negotiator, testi- fied that the Employer refused the Union's demand that the employees be paid for their vacation time while on strike in 1985. That issue was the subject of an unfair labor practice hearing on 10 December 1985. On 10 Feb- ruary 1986 Administrative Law Judge William N. Cates found the employer was not guilty of an unfair labor practice in that regard (JD-ATL-8-86). That matter is pending before the National Labor Relations Board. Bailey admitted that he consistently told the Union that vacations would be handled the same way that they were handled following the 1979 strike. Bailey testified that the Employer's position did not change regarding vacations. That testimony by Abel and Tolley illustrates an under- standing that is in accord with the Employer's position. At other points in their testimony, both Abel and Tolley testified differently. Both Abel and Tolley also testified that Bailey said the employees would have the length of the strike to take vacations. Other union spokesmen understood that the employees would have 10-1/2 months or more to use previously earned vaca- tion. The record does not show that the Employer inten- tionally confused the vacation use issue. Roland Bailey clearly discussed the length of the strike, the factors used in determining the use of vacations following the 1979 strike, and the time periods involved in resetting when accrued vacation must be used. However, the record does not show that the resulting confusion was caused by anything more than intermingling of all those factors. Obviously the intermingling of those various factors was necessary to fully negotiate the vacation use issue. More- over, the record does not show that Respondent actually changed its method of determining time in which em- ployees were permitted to use earned vacation time. B. Anniversary Dates However, more confusion is apparent in the issue of anniversary dates change. The language of the contract, as it has appeared since 1973, shows that an employee becomes eligible for a number of weeks of vacation on working 1000 hours during a 12-month period: An employee who has worked not less than one thousand (1000) hours during a period of not less than twelve (12) months following the anniversary date of his/her regular employment shall be eligible for week(s) of vacation. . . . According to much of the testimony, Roland Bailey's position during negotiations was in accord with the lan- guage in the contract. For example, Larry Abel testified: (Roland Bailey said) . . . once you complete your 1000 hours, then you'll be eligible for your new an- niversary (date) . .. . II. DISCUSSION A. Use of Earned Vacation The vacation issue presented a confusing question as evidenced by the above cited testimony. I am convinced that many of the witnesses were testifying as to their recollection of events during negotiations. However, it is apparent from much of the testimony, including especially that of union spokesmen Abel and Tolley, that the Employer's position was not completely clear to the Union. For example, as shown above, Larry Abel testified that employer spokesman Bailey expressed that "[w]hatever time that you all [had when the strike started], the strike ends, you all have that length of time to take the vacations you currently had." Lonnie Tolley testified that Bailey said, "They would have the length of time that they would have had before the strike." According to Lonnie Tolley, Bailey told the Union's negotiating committee that once an employeee complet- ed 1000 hours, a new anniversary date would be estab- lished. The context of the above-mentioned negotiations is im- portant. Those negotiations followed a 10-1/2-month strike. Because of the length of the strike it is improbable that any unit employee acquire 1000 work hours during his/her regular anniversary year. That fact necessitated changes in anniversary dates. Past practice supports the Union's understanding of how anniversary dates would be reset. The record shows that following the 1979 strike new anniversary dates were established on each employee accumulating a total of 1000 hours. Respondent admits to the practice in its brief as follows: NUCLEAR FUEL SERVICES 709 The Company's policy in the past with respect to layoffs and illness had been to allow employees who passed their anniversary date while on layoff or illness without accumulating 1000 hours of work during the vacation year, to return to work after the layoff and begin to accumulate the 1000 hours by adding to the hours accumulated at the time they began their layoff or illness. At the point that the returning employee accumulated 1000 hours, the Company would adjust the anniversary date to begin at that time. Example: An employeee with an anniversary date of September 1, 1986, was laid off on May 15, 1986, after accumulating 800 hours of work time. If the employee was recalled on October 1, 1986, the em- ployee would begin accumulating hours again. As- suming the employee accumulated 200 hours on November 15, 1986, the employee's anniversary date would be moved from September 1, 1986 to November 15, 1986 and thereafter his vacation anni- versary date would be based upon November 15 of each year. Because of the length of the strike in 1985 (10-1/2- months), the Company elected not to continue the past practice for this particular strike, but informed the Union during negotiations in February 1986 that it would count the strike period as a window period for the purpose of computing the 12 months period for vacation and the employees would be required to work 1000 hours plus 12 months. Roland Bailey testified at the hearing that he consist- ently took the position during the 1986 negotiations that employees would be required to work both 1000 hours and 12 months in order to establish a new anniversary date. Witnesses for the Union and the General Counsel dispute that Bailey took that position in February but they agreed that Respondent Employer took the position advanced by Bailey after the employees ratified the con- tract on 30 March. In fact, in a memo dated 27 May 1986, Roland Bailey advised employees: Each employee is required to meet the twelve (12) month continuous employment requirement, as well as work one thousand (1000) hours in order to qual- ify for vacation under Article 8... . I find Bailey's testimony to the effect that he negotiat- ed the change in the method of establishing new anniver- sary dates is not persuasive. In the first place, Bailey tes- tified that he frequently told the union negotiators that the vacation provisions would be applied exactly as they were applied in 1979. However, as mentioned above, the practice until 1986 had been to establish a new anniversa- ry date whenever an employee accumulated 1000 work hours. Additionally, other members of the Union's negotiat- ing committee recalled that before May 1986 Respondent Employer consistently stated that a new anniversary date would be established for each employee following the strike, when the respective employee accumulated 1000 total work hours. Employee James Bailey testified about a conversation he had with Respondent Employer's former Employee Relations Representative Wayne Yonka,2 in late April 1986: And [Yonka] said, then you won't get 1000 hours by your . . . your normal anniversary date so when you accumulate 1000 hours, he said, it should be sometime in October. He said, we'll use October 1 to go by. He said, then you'll have 4 more weeks vacation that will be the new anniversary date in the future. Employee Scott Charles testified about a conversation he had with Supervisor Don Lewis after Charles re- turned to work in April 1986: Well, I turned in for vacation, and plus then I asked [Lewis] there, as far, my vacation, when I would be eligible for it, you know, as far as, but I just asked him but I got the 1000 hours, would I . . . I would . . . would I receive another, you know, four weeks vacation, which he replied Yes I would. Union Committeeman Roger Birchfield testified about the 4 February 1986 negotiation session: I recall Lonnie Tolley asking the Company what would . . . what their position was when an em- ployee went back to work and didn't have the 1000 hours in. And Roland Bailey responded and said that when the employee went back to work and completed his 1000 hours that he would establish his new anniversary and he would be due his vaca- tion. Union Committeeman Larry Peterson also testified about the 4 February 1986 negotiation session: [Bailey] said, you work out, you get 1000 hours, your anniversary date will change, that will be your next . . . . Your new anniversary date, unless some- thing else happens. Finally, Union Vice President Hurbert Metcalf re- called a discussion during the 4 February 1986 negotia- tion meeting in which [Roland Bailey] said when the people when the em- ployees went back to work, after they worked 1000 hours, they would be entitled to more vacation. I credit the testimony of James Bailey, Scott Charles, Roger Birchfield, Larry Peterson, Lonnie Tolley, Larry Abel, and Hurbert Metcalf Jr., that Bailey's stated posi- tion before 30 March 1986 was that a new anniversary 2 Bailey's testimony was not contested Yonka did not testify Roland Bailey testified that Yonka is no longer employed by Respondent Em- ployer 710 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD date would be established on each employee reaching 1000 hours. By changing the method of computing anniversary dates after the parties agreed to a collective-bargaining contract before 30 March 1986, Respondent Employer engaged in a unilateral change in terms and conditions of employment. I find that the credited evidence shows that Respond- ents agreed to the following understanding of the provi- sions in the collective-bargaining contract: (1) Anniversary dates-each striking employee shall have a new anniversary date established fol- lowing his/her return to work after the May 1985- April 1986 strike, which shall be the earliest date in which he/she accumulated a total of one thousand hours of work since his/her last anniversary date. (2) Vacation-each employee shall have a total time available to use vacation time earned before 15 May 1985, totaling 12 months exclusive of the time that employee was out on strike. III. CONCLUSIONS To provide feedback to the entire plant popula- tion when appropriate. 2.0 Policy Employees are encouraged to express their con- cern through their supervisor. However, employ- ees who wish to express their concern directly to higher management have the right to do so. An employee may discuss his concern with a man- agement person directly on his own time or on company time with appropriate supervisory ap- proval without repercussion. 3.0 Supervision's Responsibility When a supervisor does not have the authority to respond to an employee's concern, he should pro- vide the employee with an Employee Concern Form and encourage the employee to express his concern in writing. In addition, the supervisor will notify the Human Resources Department of the concern. In view of the above mentioned factual determinations I find that Respondent Employer did not unilaterally in- crease the eligibility periods for use of earned vacation time. I do find that Respondent Employer unilaterally changed the method of determining anniversary dates from one of establishing a new anniversary date on an employee working 1000 hours within 12 months to one establishing a new anniversary date on an employee working 1000 hours and working 12 months. Additionally, I find that Respondent Union was not justified in refusing to sign the agreed-to collective-bar- gaining contract. The record failed to show any valid ground why the Union refused to execute the collective- bargaining contract with the Employer. The Employer's subsequent unilateral change in the method of establish- ing new anniversary dates does not justify the Union's refusal to execute the contract. Therefore, I find that Re- spondent Union violated Section 8(b)(3) by refusing to execute the collective-bargaining contract that the em- ployees ratified on 30 March 1986. United Steelworkers (Ingersoll-Rand), 275 NLRB 712 (1985); Paperworkers Local 795, 254 NLRB 1332 (1981). A. Development of an Employee Concern Program On 8 July 1986 Respondent posted the following notice to employees: EMPLOYEE CONCERN PROGRAM 1.0 Purpose To provide a means for an employee to express their concerns to company management about problems areas relating to any aspect of the over- all operation and remain anonymous if so desired. To insure a timely answer is provided directly to those employees who do not wish to remain anonymous in regards to their concerns. 4.0 Employee Concern Form Employees may wish to complete an Employee Concern Form (Attachment # 1) and submit to Human Resources . Employee Concern Forms and envelopes may be obtained in the lobby of the 320 Building or from their supervisor. 5.0 Human Resources Participation Human Resources Department will maintain an open door policy and be willing to consider em- ployees' concerns. Answers to concerns will be in a timely manner. Human Resources will evaluate a concern and consult with other departments in arriving at an answer or resolution to their concern. Human Resources may present the concern to the re- sponsible department for resolution and/or answer. Human Resources will advise the em- ployees of the answer and/or response in a timely manner. If the Employer Concern Form was submitted anonymously, an answer may not be possible. Where applicable, a response or answer may be posted on the plant bulletin board or published in the plant Newsletter. 6.0 Responsible Department's Participation Each Department Manager will maintain an open door policy and be willing to consider an em- ployee's concern at a time convenient to both parties. The Department Manager will consult with the Human Resources Department to re- solve the concern. An answer will be supplied in a timely manner to the Human Resources De- partment so the employees can receive an answer to their concerns. NUCLEAR FUEL SERVICES 711 7.0 Record All concerns received will be forwarded to the Human Resources Department for retention in a confidential file. It was admitted that the employer concern program was implemented without notice to, or discussion with, the Union. Roland Bailey testified that Respondent Employer im- plemented the employee concern program because of the Nuclear Regulatory Commission was concerned about ther Employer's labor management relations . Bailey ex- plained that the employee concern program included all employees and was not limited to the bargaining unit. On 4 September 1986 Respondent Employer posted the following notice to employees: NOTICE ALL BARGAINING UNIT EMPLOYEES Local 3-677 has expressed a concern to the Com- pany and has filed charges against the Company with the National Labor Relations Board because of the Employee Concern Program which was institut- ed on July 8, 1986. The Union is concerned that this program is meant to take the place of or cir- cumvent the grievances procedure in the Collective Bargaining Agreement between the Company and the Union. The Company wishes to make it quite clear that the Employee Concern Program is not meant to take the place of the grievance procedure or the Health and Safety Provisions of Article 10 of the Collective Bargaining Agreement. All bargaining unit members should continue to utilize those proce- dures for grievances and health and safety problems or questions. The Employee Concern Program is meant to give employees an avenue to discuss with manage- ment or to bring to the attention of management, questions which do not come under the Collective Bargaining Agreement . The procedure is to be used for suggestions to improve some practice or proce- dure to enable the employees to work better or easier. It is a procedure which may also be used to inform management of any type of discrimination or harassment (such as racial or sexual) by supervisors or other employees so that management may be aware of such a situation and take steps to stop it. It is also a procedure for bringing to management's at- tention any practices which are not in accordance with Federal and State or Company regulations, which are not health and safety matters, but could cause future problems for the Company in comply- ing with those requirements. Any bargaining unit employees considering using the Employee Concern Program, who is in doubt as to whether the matter should be a subject for the contract grievance procedure or the Employee Concern Program should first utilize the contract grievance procedure. Any matters which come through the Employee Concern Program which should be the subject of a grievance under the Col- lective Bargaining Agreement will be returned to the employee. Any further questions on the program may be di- rected to your supervisor or to the Human Re- sources Department. /s/ Roland D. Bailey Respondent Employer also showed that, on occasion, employee complaints under the employee concern pro- gram have been rejected on grounds that the complaints should be filed as grievances under the labor agreement with the Union. B. Conclusions Despite Roland Bailey's testimony that the Nuclear Regulatory Commission was concerned about labor man- agement relations, there is no showing that the Nuclear Regulatory Commission required , or even suggested, the implementation of the employee concern program. More- over, there is no evidence showing that the Nuclear Regulatory Commission recommended circumvention of Respondent Employer's responsibility to negotiate with the Union. The employee concern program expresses that it shall include expressions of employee concern "about problem areas relating to any aspect of the overall operation. " By implementing the employee concern program for unit employees, Respondent Employer effectively circumvented union involvement in an area of potential employee concern regarding working conditions. The law does not condone actions in which an employer ex- cludes an exclusive bargaining representative from par- ticipating in grievance proceedings in the absence of notice and negotiations before implementation of such procedures. By unilaterally implementing the employee concern program, Respondent violated Section 8(a)(1) and (5). Union Carbide Corp., 275 NLRB 197 ( 1985). THE REMEDY Having found that Respondents have engaged in cer- tain unfair labor practices affecting commerce , I shall recommend that each Respondent cease and desist there- from and take certain affirmative actions designed to ef- fectuate the policies of the Act, including posting the re- spective notices attached. CONCLUSIONS OF LAW 1. Respondent Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By unilaterally changing its method of establishing employee anniversary dates and by unilaterally imple- menting its employee concern program, Respondent vio- lated Section 8(a)(1) and (5) of the Act. 4. By refusing to execute an agreed on collective-bar- gaining agreement, Respondent Union violated Section 8(b)(3) of the Act. 712 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed3 ORDER A. The Respondent, Oil, Chemical & Atomic Workers International Union and its Local 3-677, its officers, agents, and representatives, shall 1. Cease and desist from refusing to bargain in good faith with Nuclear Fuel Services, Inc., by refusing to sign a collective-bargaining agreement, embodying the terms and conditions of employment, that was reached with Nuclear Fuel Services, Inc. on or before 30 March 1986. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Sign a written contract embodying the terms and conditions of employment agreed on with Nuclear Fuel Services, Inc., on or before 30 March 1986. (b) Post at its hall and offices copies of the attached notice marked "Appendix A."4 Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by the Respondent Union's authorized representative, shall be posted by the Respondent Union immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to members and employees are customari- ly posted. Reasonable steps shall be taken by the Re- spondent Union to ensure that the notices are not al- tered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. B. The Respondent, Nuclear Fuel Services, Inc., Erwin, Tennessee, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Maintaining a method of establishing new anniver- sary dates for employees because of a labor strike, which requires each employee to work 1000 hours and 12 months following the respective employee's last anniver- sary date. (b) Instituting and maintaining its employee concern program without giving the Union notice and opportuni- ty to bargain regarding implementation of that program. (c) 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. 3 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 4 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Resume its former policies of establishing new an- niversary dates when required by an absence because of a strike or otherwise to the earliest date in which the re- spective employee worked 1000 hours following that em- ployee's last anniversary date. (b) Restore to each employee all vacation time that each respective employee in the bargaining unit de- scribed below lost because of its unlawful change in the method of setting new anniversary dates. (c) Discontinue its employee concern program as it ap- plies to employees in the following described bargaining unit represented by Oil, Chemical and Atomic Workers International Union and its Local 3-677: All production and maintenance employees, labora- tory assistants, laboratory technicians, plant clerical employees, surveillance technicians, and radiation monitors employed by the Respondent Employer at its Erwin, Tennessee, facility, but excluding all office clerical employees, laboratory employees other than laboratory assistants and laboratory tech- nicians, technical, professional and sales employees, foremen, watchmen, guards, and supervisors as de- fined in the Act. (d) Post at its facility in Erwin, Tennessee, copies of the attached notice marked "Appendix B."5 Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by the Respondent Em- ployer's authorized representative, shall be posted by the Respondent Employer immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent Employer to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 5 See in. 4, above APPENDIX A NOTICE To MEMBERS AND EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to bargain in good faith with Nu- clear Fuel Services, Inc. by refusing to sign a collective- bargaining agreement embodying the terms and condi- tions of employment on which agreement was reached with Nuclear Fuel Services, Inc. on or before 30 March 1986. NUCLEAR FUEL SERVICES WE WILL sign a written contract embodying the terms and conditions of employment as agreed to with Nuclear Fuel Services, Inc., on or before 30 March 1986. 713 OIL, CHEMICAL & ATOMIC WORKERS INTERNATIONAL UNION AND ITS LOCAL 3- 677