Caterpillar, Inc.

846 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Caterpillar Inc. and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Indus- trial and Service Workers International Union, AFL–CIO/CLC. Case 30–CA–064314 October 30, 2014 DECISION AND ORDER BY MEMBERS MISCIMARRA, JOHNSON, AND SCHIFFER On April 23, 2013, the Board issued a Decision and Order in this proceeding, which is reported at 359 NLRB 790 (2013). Thereafter, the Respondent filed a petition for review in the United States Court of Appeals for the District of Columbia Circuit. At the time of the Decision and Order, the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally in- firm. On June 26, 2014, the United States Supreme Court issued its decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014). Thereafter, the Board issued an order setting aside the Decision and Order, and retained this case on its docket to take further action as appropriate.1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. In view of the decision of the Supreme Court in NLRB v. Noel Canning, supra, we have considered de novo the judge’s decision and the record in light of the exceptions and briefs. We have also considered the now-vacated Decision and Order, and we agree with the rationale set forth therein, as modified.2 Accordingly, we affirm the 1 Accordingly, the Respondent’s pending motion for reconsideration of the prior Decision and Order is mooted. 2 In finding that the Respondent violated Sec. 8(a)(5) and (1) by re- fusing access to a nonemployee union representative to investigate after a fatal accident, we find no need to rely on the Respondent’s lax ap- proach to the admission of documents at the hearing, evidence as to predecessor employer Bucyrus’ history of allowing visitors access to the plant, or Regional Manager Rod Bolhous’ “concession” that the risk of disclosing confidential information by allowing access has not changed since Caterpillar’s acquisition. We find it sufficient that the record shows that Caterpillar itself frequently gives tours to customers, dealers, and technical groups, and has also given tours to students. Tour groups go through during work hours while work is in progress, and Bolhous testified that it would be a “normal part of the visit” for customers to tour the area where the accident occurred. There is no evidence that the Respondent ever required any of these visitors to sign nondisclosure agreements. In these circumstances, we find that the Respondent has failed to meet its burden of establishing a confidentiali- ty interest that would outweigh the Union’s right to conduct a reasona- bly limited health and safety inspection. Our colleague concurs in finding the violation, but dissents from modifying the judge’s remedial Order. In essence, he disagrees with the conclusion, incorporated here, that the “Respondent failed to demonstrate a confidentiality interest that would warrant conditioning access upon execution of a confidentiality agreement.” 359 NLRB 790, 790. C.C.E., Inc., 318 NLRB 977 (1995), cited by our colleague, is distinguishable. There, the Board, addressing an asserted confidentiali- judge’s rulings, findings, and conclusions and adopt the judge’s recommended Order, as also modified here, to the extent and for the reasons stated in the Decision and Order reported at 359 NLRB No. 97, which is incorpo- rated herein by reference, as modified.3 MEMBER MISCIMARRA, dissenting in part. I would affirm the judge’s rulings, findings, and con- clusions in this case, which involves the Respondent’s failure to grant access to a nonemployee union repre- sentative for purposes of conducting a health and safety inspection after a fatal accident. I believe the judge properly applied the Board’s decision in Holyoke Water Power Co., 273 NLRB 1369 (1985), enfd. 778 F.2d 49 (1st Cir. 1985), and the record provides substantial sup- port for finding that the Union’s representational interest in the circumstances presented here warranted the grant- ing of access as provided in the judge’s recommended Order (discussed below), notwithstanding the Respond- ent’s right to control its property and ensure its opera- tions are unhindered. See, e.g., C.C.E., Inc., 318 NLRB 977 (1995). I dissent, however, from my colleagues’ failure to adopt the judge’s recommended Order, which, instead of requiring immediate access, would have required the Respondent, upon request, to engage in good-faith bar- gaining with the Union regarding reasonable measures to permit access while protecting Respondent’s interest in preserving the confidential nature of its manufacturing processes. My colleagues discount the need for such bargaining based on evidence that the Respondent has permitted access to the facility by certain other nonem- ployee visitors in the past. The judge found that this evi- dence caused the Respondent’s property interest to be “lessened to a degree,” but he made this finding when addressing whether any access was warranted under Ho- lyoke Water Power, supra. At the same time, the judge also found that the Respondent possesses bona fide con- fidentiality concerns. In addition, the judge found that Respondent and the Union had negotiated “similar agreements” in the past regarding workplace protocols, other documents, and a DVD that showed some of Re- spondent’s operations. Accordingly, I believe the record ty interest, adopted the judge’s remedy allowing access “for reasonable periods and at reasonable working or production times” (similar to the scope restrictions that we have imposed here), but allowed the employ- er to “protect its interest as it has with other visitors by covering such ‘secret’ portions of its product or production.” Id. at 981. Here, there is no evidence that the Respondent has ever taken similar measures with visitors to protect its asserted confidentiality interest (by covering se- cret things or by other means); indeed, as noted above, the record shows otherwise. 3 We shall substitute a new notice to conform with Durham School Services, 360 NLRB 694 (2014). 361 NLRB No. 77 CATERPILLAR, INC. 847 warrants the remedial order fashioned by the judge, which provided for good-faith bargaining, upon request, regarding reasonable measures to protect Respondent’s interest in preserving the confidentiality of its manufac- turing processes. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT refuse to bargain in good faith with the United Steel, Paper and Forestry, Rubber, Manufactur- ing, Energy, Allied Industrial and Service Workers Inter- national Union, AFL–CIO/CLC, by denying the Union’s request for access to our South Milwaukee facility to investigate an industrial accident and to conduct a health and safety inspection. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights set forth above. WE WILL, upon the Union’s request, grant access, by the Union’s Health and Safety Specialist, to reasonable places within the South Milwaukee, Wisconsin facility, for a reasonable period and at a reasonable time, to inves- tigate an industrial accident and to conduct a health and safety inspection, including investigating all of the pro- cesses used to turn crawler assemblies. CATERPILLAR INC. The Board’s decision can be found at www.nlrb.gov/case/30–CA–064314 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Re- lations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.