E I Dupont De Nemours & Co., Inc

E I DU PONT & CO E I Dupont de Nemours & Company, Inc and Martinsville Nylon Employees ' Council Corpo ration Case 5-CA-18658 November 21 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On June 3 1988, Administrative Law Judge Wil liam F Jacobs issued the attached decision The General Counsel and the Charging Party filed ex ceptions and supporting briefs, and the Respondent filed an answering brief in support of the judge s decision 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 bnefs and has decided to affirm the judge s rulings, findings I and conclusions and to adopt the recommended Order ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis missed 1 We agree with the judge that in the circumstances of this case the Respondent made a reasonable sufficient effort to comply in good faith with the Union s information request of November 19 1986 and that Union Secretary Treasurer Frye s conduct made the Respondent s obliga tion unnecessarily difficult to carry out We find distinguishable Interstate Food Processing Corp 283 NLRB 303 (1987) cited by the General Coun sel in which the Board found no material correlation between the judge s impression of a union representative s personality gained at the hear ing and the sufficiency of that union representatives written requests for information Id at 302 In the instant case we agree with the judge that Fry s confusing testimony concerning the information sought by the Union was an accurate reflection of the confusion Frye s conduct created in the months following the Union s written November request Member Johansen who dissented in Interstate finds it unnecessary to distinguish it James P Lewis Esq for the General Counsel Thomas Sager and Charles E Mitchell Esg& of Wilming ton Delaware for the Respondent Kenneth Henley Esq of Philadelphia Pennsylvania for the Charging Party DECISION STATEMENT OF THE CASE WILLIAM F JACOBS Administrative Law Judge This case was tried at Collinsville Virginia on August 19 and 20 1987 Martinsville Nylon Employees Council Corpo ration (the Union) filed the charge on February 17 1987 and complaint' issued on April 3 1987 alleging that E 1 The complaint was amended at the hearing without objection 759 I Dupont de Nt'•mours & Company Inc (the Company or the Respond( nt) violated Section 8(a)(1) and (5) of the Act by refus'mg to furnish to the Union information necessary for it Ito perform its duties as exclusive collec tive bargaining representative of Respondents employees and by making t innate ral changes in working conditions Respondent denies the commission of any unfair prac tices I All parties were represented at the hearing and were afforded full oliportuinity to be heard and present evi dence and argument All parties filed bnefs On the entire record 2 my abservation of the demeanor of the witnesses and I after giving due consideration to the briefs I make the following J FINDINGS OF FACT3 The ^ Union s Request for Information In July 198 '6 a meeting was called by management to negotiate witl i the Union a reduction in the work force in certain departments in favor of adding outside con tractors During the meeting according to the Union s secretary trea, urer Frye President Harold Goad repre senting the Union asked Product Team Manager Vest representing ti he Company how he knew whether the unit employees being discussed would be needed in the future and V et replied that he was using information he had obtained I from the planning guide4 in order to staff his future bus mess needs Later during the meeting Frye asked the Company s industrial relations supervisor and chief negotiator Harold Slate for a copy of the planning guide that Ve st had mentioned Slate according to Frye replied that he did not know of any such document 5 The matter was not immediately pursued and the Com pany thereafter implemented its staff reduction plan In Novemlber the Union obtained from an anonymous source thret documents entitled Building For the Future-The Martinsville Plant s Planning Guide re wised November 19 1982 Martinsville Works Engineer ing Five Year Plan and 1985 Commitment Forecast- Martinsville ^ Plant On November 19 Goad wrote a memorandum to Plant Manager John Page requesting The Martinsville Plants Planning Guide-Building for the Future Revision 1 November 19 1982 along with any revisio is since April 1985 in order for the Union to better understand the management position to enable the Union to negotiate in good faith and to better represent the bargai ding unit employees Frye testified that the Union needed the information requested because Vest had referred to the planning guide during the July nego tiations as the basis for the Company s future staffing He stated that the Union needed the information on staffing and that it the Union had a copy of the planning guide it could better represent the employees during negotiations 2 The Union s motion to amend the transcript is granted 9 The complaint alleges and the answer admits that the Board has funs diction and the Union is a labor organization within the meaning of the Act • Neither Vest nor Goad testified 5 The text is in accordance with Frye s testimony Slate denied that the term planning guide was used 291 NLRB No 120 760 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Page did not reply to the Union s lettf r Rather he as signed the task of answering it to Personnel Superintend ent Harry Vaughn Shortly thereafter however Vaughn retired and the request was lost in the shuffle Later Page remembered the Unions request ind reassigned it to another member of the management team who deter mined that no such thing as a planning g uide existed and then assigned the request to Slate After doing some re search Slate contacted Frye and advised i him that he did not have anything in the nature of the requested docu ment Though Frye contacted Slate with the same re quest several times in late November iDecember and early January 1987 6 Slate kept insisting chat he did not know what Frye was talking about that he did not have such a document and that no such doc ument existed Nevertheless Slate agreed to continue to look into it According to Slate he did indeed coiritinue to look into the existence of a planning guide He checked with superintendents and with his superiors intcluding Plant Manager Page He searched through de sks and files looking for any type of document similar to a planning guide but was unsuccessful He reported his failure to Frye and asked him what precisely he was looking for Frye replied that he had to know where ithe plant was going what the staffing needs were going to be Sometime during this period Goad Fnie Slate and Product Team Manager George Collins became involved in negotiations on a subject otherwise not ri levant to the matters instant Collins advised the Union that certain things were going to happen down the rciad and that he was going to have to make certain chant es in person nel involving bargaining unit people Goad inquired about how Collins knew what was goin g to happen down the road Collins replied that all he had to go by was the planning guide ' or the five year plan 8 De spite the discovery by Slate that certain dociuments exist ed that might fit the description of the documents re quested by the Union 9 he did not offer them to the Union because he testified these documents were obso lete in light of the new plan that was currently being de signed by Page and the rest of management s staff Re garding this new plan Slate approached Page and urged him to provide a copy of it to the Union to satisfy the Union s outstanding request Page agreed On or about January 27 Slate called Fr to and told him that he thought he had found what the Union was looking for but to make sure asked to see what infor matron the Union already had Frye agreed and 20-30 minutes later met with Slate10 and Personni I Superin tendent John Watkins and showed them two of the three documents that the Union had received from the anony mous source back in November namely the 1985 Com mitment Forecast and the Martinsville Works Engi neering Five Year Plan Although Frye had mentioned to Slate that the Union was in possession of certain docu All subsequent dates are in 1987 unless noted otherwise 7 According to Frye 8 According to Slate 8 One of these was eventually supplied to the Union in August as a result of a July meeting between Frye and Page 10 Frye had earlier told Slate that he had a copy of the Plannini Guide ments on several occasions before January 27 and Slate had stated that he did not understand what Frye wanted this was the first time that Frye actually showed Slate any documents When shown the documents Slate wanted to know where in hell Frye had gotten them then commented that now he understood what it was that Frye had been asking for Frye then requested infor matron updating the Commitment Forecast and Slate promised once again to look into it and see what he could do On February 11 Frye contacted Slate by telephone and advised him that the Union would file a charge with the Board unless the Company furnished the requested information by 4 p in that day Slate discussed Frye s ul timatum with Page determined that the study essentially complete should be available in a few days then called Frye and promised to give him what he felt the Union needed within 10 days On February 13 the Company met with the Union and presented a document entitled Martinsville Targets and Direction dated February 12 1987 The meeting lasted about 2 hours during which management explained the purpose and content of the document Members of the union committee asked questions but did not voice dissatisfaction with the information received The Com pany furnished the Union with a copy of the document a few days later Although the document presented to the Union on February 13 contains some of the information that the Union wanted it did not fully satisfy its needs On Feb ruary 17 the Union filed the instant charge but neverthe less continued thereafter to request additional informa tion On or about March 5 Frye asked Slate if he had any more information that the document provided was not sufficient Slate replied that what had been given to the Union was all that the Company had Frye asked on the basis of rumors he had heard if the Company did not have a document entitled Cost Commitment or Cost Containment 87 11 Slate replied that he did not know what Frye was talking about Though Frye pursued the matter over the next few months the Company offered the Union no additional information As noted above complaint issued April 3 with a hear ing scheduled for August 20 At a negotiation session held for other purposes in June Page asked Goad and Frye what information the Union already had and what additional information it needed They advised Page that they wanted the Planning Guide that it existed and they wanted it Page told them that he did not have a planning guide that it did not exist He asked them for a copy of whatever they had and promised to look at the data and provide them with that type of data updated A few days later Frye dropped off at Page s office in Page s absence two of the three documents that he had obtained the previous November the 1985 Commitment Forecast and the title pages from The Martinsville Works Engineering Five Year Plan on the first page of 11 At the hearing the Company offered a document labeled Cost Con tamment It is the same document as 1985 Commitment Forecast which was already in the Union s possession E I DU PONT & CO which Frye at some point in time 12 wrote 1983 Plan ping Guide For whatever reason he did not leave The Martinsville Plant s Planning Guide to which Goad had referred in his letter of November 19 1986 When Page returned to his office he saw the two docu ments that Frye had left there and was surprised that neither bore the title mentioned in the Union s letter He then gave the documents to the personnel section with instructions to obtain similar information to give to the Union The personnel section advised Page that the Company no longer published either Five Year Plans or Commitment Forecasts but that similar information was contained in other documents published the previous year Page advised Frye of this fact then went on vaca tion When he returned from vacation Page scheduled a meeting with the Union for August 13 at which time he presented to the Union a document entitled Production Plan 1987-1989 containing the latest information that had been gathered corresponding to the data contained in the documents presented to him in June 13 Much of the information contained in the production plan was ob solete and Page undertook during the meeting to advise the Union s committee in what respects this was so Page characterized the document as a commitment forecast It contained various charts that reflected production costs and staffing requirements over the past few years and projections of the same date for the future into 1989 When Page was through reviewing the production plan he asked Frye if the information was sufficient Frye stated that the Union would go over the document and get back to Page It did not do so At the heanng on August 20 Page credibly testified concerning various documents that he had never seen the planning guide before the hearing that the Company had not issued a 5 year plan since before April 1985 that the 1985 commitment forecast except for the 5 year plan title pages was the only document provided to him by Frye in June and that the production plan submitted to the Union in August was an old document but was nev ertheless offered in an attempt to update the 1985 coin mitment forecast as per the Union s request On December 14 long after the close of the hearing the Union filed a Motion to Admit Into Evidence Newly Discovered Evidence 14 consisting of two docu ments The first document admitted as Union s Exhibit 2 was entitled Computer Aided Mfg Systems Cams and is dated July 10 1985 The second document appears to be a collection of selected pages taken from a larger document reflecting a history of maintenance costs at the Martinsville plant for the years 1979-1982 and a projec 12 It is not clear from the record if Frye wrote those words on the document before giving it to Page or afterwards Despite testimony to the contrary this document is nowhere entitled Planning Guide except for Frye s handwritten notation and does not project from 1983 to 1988 but rather from 1979 to 1983 Frye later testified that in dating the docu meet 1983 he erred and that it should have been dated 1980 13 In testifying about the August 13 meeting Frye again confused the 5 year plan with the planning guide 4 The motion was granted over Respondents objections 761 tion of such costs and planned reductions in future costs for the years 1982-1987 11 Conclusion The November 19 1986 request for any revised edi tions of the planning guide appears to be a legitimate re quest for a very specific document I find that Slate un derstood it to be such and spent a good amount of time and effort trying to locate this document the original of which the Union already had and the post April 1985 revisions of which if they exist have yet to be found It is agreed that between November 19 1986 and Jan uary 27 1987 Frye asked Slate on 10 or 12 occasions for the information previously requested Each time Slate truthfully told Frye that he did not know what Frye was talking about that he did not have such a document enti tled planning guide or that no such document existed Frye on any of these occasions could have easily dis pelled all confusion if he chose to do so by showing Slate the Union s copy of the requested document Frye s testimony concerning the information requested is exceedingly confusing At one point he described the 1985 Commitment Forecast-Martinsville Plant an en tirely different document from that which was requested in the Unions memorandum of November 19 as the planning guide Elsewhere he referred to the Martins ville Works Engineering Five Year Plan a third docu ment as the planning guide Finally in still part of the transcript he referred to one of these two documents as part of the planning guide thus implying that he consid ered all three documents that came into the possession of the Union in November 1986 collectively as the plan ning guide Frye s confusion at the hearing gives me sera ous doubts whether he knew what he was talking about when he was asking Slate for the requested information Slate s lack of certainty about precisely what the Union was requesting is understandable in light of Frye s con fusing testimony Finally when Slate asked Frye to show him what in formation the Union had Frye agreed However at the meeting on January 27 Frye did not show Slate The Martinsville Plants Planning Guide which the Union had requested in its November memorandum but rather added to the confusion by showing him the 1985 Com mitment Forecast' and the Martinsville Works Engineer ing Five Year Plan Inexplicably Frye wrote on the front page of the 5 year plan Planning Guide thus mislabeling that document It is not clear when Frye did this Similarly it is not clear why it was done-through ineptitude or duplicity Though that question is not before me suffice it is to say that Frye did not clarify matters at this time albeit Slate may have been con vinced that he had done so In February when the Union threatened to file charges against the Company unless the requested infor mation was received within a particular time period the Company came through with a study that proved triad 15 After analyzing the content of these documents and noting their dates I am satisfied that management could not possiby conclude from the Union s requests for information that these were the documents it was seeking 762 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD equate to the Unions needs It seems clear however that Slate knew neither the precise requirements of the Union s request nor the precise content of the Martins ville Targets and Directions which issued February 12 1987 I am convinced however that the document mad equate as it was was offered in good faith In June when Page personally became involved in at tempting to satisfy the Union s request he received no more help from Frye and Goad than Slate had earlier When he asked them what information the Union al ready had and what additional information it needed they replied that they wanted the planning guide that they knew it existed and they wanted it When he asked them for a copy of what they had and promised to update whatever they provided they again played games Instead of simply giving Page a copy of the plan ning guide which they had in their possession and which Goad had requested back in November Frye dropped off a copy of the 1985 Commitment Forecast and the title pages from the Martinsville Works Engineering Five Year Plan apparently already relabled 1983 Plan ning Guide Whether the Production Plan 1987-1989 that Page eventually provided to the Union satisfied the Union s request is not certain What is certain however is that the Union s exiguous efforts to adequately advise the Company of precisely what it wanted made fulfillment of its request unnecessarily difficult 16 1 do not believe that the Company should be found guilty of bargaining in bad faith under these circumstances 17 I recommend dismis sal of this allegation Unilateral Changes Helen Wood at relevant times was a C level clerk in Respondents quality engineering section As such she did daily bookkeeping on stock and monthend reports and performed various typing and filing duties In November 1986 Graham Park a supervisor in the quality engineering section asked Wood to go to the lab and train on the computer because the computer work was going to be transferred into her section and the em ployee currently doing the work which was an A level18 job was scheduled to retire Wood did as she was told and worked with the expert enced employee as a trainee three or four times for about 2 hours per session She never worked by herself but only in the presence of her mentor Under the guid ance of the more experienced employee Wood learned to enter and take data out of the computer 19 At some point while Wood was undergoing training on the computer in the lab Goad learned about it and complained to Park that he should not have made the as 16 A request must be clear enough to permit the company to comply MFA Milling Co 170 NLRB 1079 1097 (1968) affd 463 F 2d 953 (D C Cir 1972) 11 The failure of the Union to obtain adequate information was at least as much the fault of the Unior as of the Respondent Under such circum stances it seems hardly fair to find Respondent in violation of the Act Cf Seattle First National Bank 267 NLRB 897 (1983) 18 A B and C levels represent salary levels A being the highest 19 Wood had done some computer work before but much of it was new to her signment without first negotiating with the Union After confirming with the personnel department that Goad was correct Park immediately discontinued Wood s training In January Robert Bledsoe a senior research engineer and supervisor in the quality engineering section asked Wood to walk with him to computer operations so that he could show her how to look up certain data regard ing vending records which data he periodically re quired When they arrived they were met by an employ ee Jeannette Stone who advised them that the job that Bledsoe was going to instruct Wood about was a pose tion then under negotiation-the question being whether it should remain an A level technical assistants job Stone added that under the circumstances she did not think that Wood should do the job Bledsoe said okay then as long as they were there he took a few minutes to show Wood what he had been talking about They both then left Wood did not actually work and never again heard anything about the job In mid February Respondent received a complaint from one of its customers necessitating the statistical analysis of certain data The matter was urgent and the data had to be put into the computer in order to make the proper calculations It was estimated that it would take about 30 hours to put the information into the com puter Park and another engineer John Mayberry dis cussed the situation then went to Wood and another C level clerk Debra Bryant and asked them if they would be interested in doing the computer input work involved Bryant refused the offer but Wood accepted the job and began work the same afternoon She continued working on the project that evening and the following day but did not complete the necessary work The fact that Wood was working on this particular as signment came to the attention of her union representa tive David Brown Brown complained to Park that Wood a C level clerk was doing B level work Park in sisted however that the job was C level work and had been properly assigned Brown said he would probably have to file a grievance and the conversation ended The job was never completed and the grievance was never filed The Union alleges that these three assignments were unilateral changes violative of Section 8(a)(1) and (5) Conclusion A unilateral change to be unlawful must be material substantial and significant 20 The above described inci dents are not I recommend dismissal of this allegation CONCLUSIONS OF LAW 1 The Respondent is an employer engaged in com merce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the mean ing of Section 2(5) of the Act 3 Respondent has not engaged in unfair labor prac tices within the meaning of Section 8(a)(1) and (5) of the Act 20 Alamo Cement Co 281 NLRB 737 (1986) E I DU PONT & CO 763 On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed21 ORDER The complaint is dismissed in its entirety 2 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Board and all objections to them shall be deemed waived for all pur Order shall as provided in Sec 102 48 of the Rules be adopted by the poses