E.G. & G. Rocky Flats

National Labor Relations Board - Board Decisions

Jul 22, 1994

314 N.L.R.B. 489 (N.L.R.B. 1994)

489
314 NLRB No. 81
E.G. & G. ROCKY FLATS
1 We find that the judge did not abuse his discretion in denying
the Respondent’s motion to permit telephonic testimony by Gene
Ideker, a retired official of the Respondent. The Respondent con-
ceded to the judge that Ideker would ‘‘come willingly’’ to the trial
to testify, but that the Respondent did not want to impose on him
and preferred the use of telephonic testimony. In these cir-
cumstances, where no impediment existed to the availability of the
witness except for the Respondent’s reluctance to call the witness to
testify, the judge reasonably denied the Respondent’s motion to per-
mit telephonic testimony.
We have nevertheless reviewed the Respondent’s offer of proof
with respect to the testimony of Ideker and find that it does not es-
tablish that the Union consented or otherwise agreed to the Respond-
ent’s unilateral modification of the method of familiarization set
forth in the 1991 RPT progression program. The Respondent stated
in its offer of proof that Ideker conducted three meetings with union
officials in which he proposed to modify familiarization training, and
that the union officials ‘‘did not agree with that suggestion [and] did
not disagree with that suggestion, and that was the way it was left.’’
Accordingly, the testimony of Ideker would not affect the outcome
of this case, and the Respondent was not prejudiced by the judge’s
ruling.
2 The Respondent contends in its exceptions that its unilateral
modification of the familiarization component of the 1991 RPT pro-
gression program was permissible pursuant to various provisions of
the parties’ collective-bargaining agreement. We have carefully ex-
amined the collective-bargaining agreement, along with the progres-
sion programs incorporated into that agreement, and find the Re-
spondent’s contention to be meritless.
We note that although the Respondent’s operation of a nuclear
weapons facility presents unique safety concerns which must be
carefully considered, the Respondent here failed to establish that any
particularized exigent threat to safety existed at the Rocky Flats fa-
cility which would have justified the Respondent’s unilateral action. 1 Unless stated otherwise, all dates occurred in 1992.
E.G. & G. Rocky Flats, Inc. and United Steel-
workers of America, Local Union 8031, AFL–
CIO–CLC. Case 27–CA–12267
July 22, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On August 31, 1993, Administrative Law Judge
William J. Pannier III issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in answer to the
exceptions of the Respondent. The Respondent filed a
reply brief to the General Counsel’s answering brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings,1 findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, E.G. & G. Rocky Flats,
Inc., Golden, Colorado, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
William J. Daly and Diana M. Munkel, Esqs., for the General
Counsel.
Carl Eiberger, Esq. (Eiberger, Stacy, Smith & Martin), of
Denver, Colorado, and Mary Ellen Amaral, Esq., of Gold-
en, Colorado, for the Respondent.
Dennis Valentine, Esq. (Brauer, Buescher, Valentine,
Goldhammer & Kelman), of Denver, Colorado, for the
Charging Party.
DECISION
WILLIAM J. PANNIER III, Administrative Law Judge. I
heard this case in Denver, Colorado, on February 11 and 12
and on April 13 and 14, 1993. On September 4, 1992,1 the
Regional Director for Region 27 of the National Labor Rela-
tions Board (the Board) issued a complaint and notice of
hearing, based on unfair labor practice charge filed on July
24, alleging violation of Section 8(d) and Section 8(a)(1) and
(5) of the National Labor Relations Act (the Act). All parties
have been afforded full opportunity to appear, to introduce
evidence, to examine and cross-examine witnesses, and to
file briefs. Based on the entire record, on the briefs that were
filed, and on my observation of the demeanor of the wit-
nesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The parties stipulated that, at all times material, E.G. & G.
Rocky Flats, Inc. (Respondent) has been a corporation with
an office and place of business in Golden, Colorado, engaged
pursuant to contract with the United States Department of
Energy in the operation and management of Rocky Flats Nu-
clear Weapons Facility. They also stipulated that, in the
course and conduct of those operations during the past 12-
month period, Respondent provided and sold services valued
in excess of $500,000 to the Department of Energy at Rocky
Flats Nuclear Weapons Facility, and annually purchased and
received goods and materials valued in excess of $5000 from
points and places outside the State of Colorado. The parties
further stipulated that those operations of Respondent have a
substantial impact on the national defense of the United
States. I conclude, consistent with the stipulation of the par-
ties, that at all times material Respondent has been an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
At all times material, United Steelworkers of America,
Local Union 8031, AFL–CIO–CLC (the Union) has been a
labor organization within the meaning of Section 2(5) of the
Act.
490 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICE
‘‘It is broadly stated that according to the ‘Lex Romana’
any one who contravenes or will not perform a written agree-
ment is infamous and to be punished.’’ (Footnote omitted.)
Pollock and Maitland, The History of English Law (Legal
Classics Library Ed.), vol. II, p. 192 (1982). Comfortably fit-
ting within that tradition is Section 8(d) of the Act’s defini-
tion of the duty to bargain collectively during the period be-
fore 60 days prior to the expiration date of collective-bar-
gaining contract:
Provided, That where there is in effect a collective-bar-
gaining contract covering employees in an industry af-
fecting commerce, the duty to bargain collectively shall
also mean that no party to such contract shall terminate
or modify such contract.
‘‘If the mandatory subject of bargaining which the em-
ployer wishes to change is the subject of a provision in the
collective bargaining agreement, the employer commits an
unfair labor practice if it changes that condition without the
permission of the Union.’’ Standard Fittings Co. v. NLRB,
845 F.2d 1311, 1315 (5th Cir. 1988). For, ‘‘Section 8(a)(5)
and (1) and Section 8(d) of the Act prohibit an employer that
is a party to an existing collective-bargaining agreement from
modifying the terms and conditions of employment estab-
lished by the agreement without obtaining the consent of the
union.’’ (Footnote omitted.) United Rigging & Hauling, 310
NLRB 828 (1993).
The unfair labor practices alleged in this case present an
issue of whether Respondent violated that statutory proscrip-
tion by suspending the familiarization phase of a training
program for certain employees. Prior to 1990 Rockwell Inter-
national had been the operations contractor for the Depart-
ment of Energy’s Rocky Flats Nuclear Weapons Facility. It
maintained a collective-bargaining relationship with the
Union as the representative of production and maintenance
employees working there. Those parties had negotiated a pro-
gression program agreement which provided for progression
training of employees in specified classifications. One of
those classifications was that of radiation protection tech-
nologist (RPT). Essentially, employees in that classification
monitor personnel, buildings, equipment, and material to en-
sure that workers and the environment are protected from ra-
diological hazards.
Pursuant to the progression program agreement, in 1989
Rockwell and the Union executed a radiation protection tech-
nologist progression program: ‘‘a three year program that has
objectives to train the employees through education and ex-
perience to become proficient in radiation protection and in-
dustrial hygiene activities.’’ For purposes of this proceeding,
that training involved classroom instruction, familiarization,
and on-the-job training. Familiarization, the training phase
that becomes an issue in this proceeding, involves familiar-
izing RPT trainees, those newly transferred to or hired for
that classification, with the layout, hazards, and safety proce-
dures of particular buildings, as well as the operations being
conducted in them. While being familiarized, RPT trainees
perform no actual production work, but are accompanied by
experienced RPTs who provide necessary information about
buildings within each area to the trainees.
Under the 1989 program, familiarization was building-spe-
cific. That is, as an RPT was assigned to work in a particular
building, he/she was familiarized with that particular build-
ing. If transferred to another building, familiarization with re-
gard to it would then be conducted.
On January 1, 1990, Respondent succeeded Rockwell as
contractor at Rocky Flats. it recognized the Union as the rep-
resentative of employees in an admittedly appropriate bar-
gaining unit of ‘‘All hourly paid production and maintenance
employees and including crewleaders employed by Respond-
ent at the Department of Energy Rocky Flats Plant, but ex-
cluding all salaried personnel, office clerical employees,
guards, watchmen, professional personnel, and supervisors as
defined in the Act.’’ The parties executed a collective-bar-
gaining contract, effective by its terms from April 8, 1990,
to October 3, 1993. Article XIV, section 5 of that contract
provides for progression programs:
Progression programs are set forth in separate docu-
ments and shall be a part of this Agreement.
Other progression programs, as may be mutually de-
veloped by [Respondent] and the Union during the term
of this Agreement, shall also be part of this Agreement.
Any changes or modifications to these programs which
are in conflict with any terms of this [A]greement can
only be made by mutual agreement of [Respondent]
and Union Bargaining Committee.
The first paragraph and the first sentence of the second para-
graph of that section were taken verbatim from the Union’s
last contract with Rockwell. As discussed in section IV infra,
the second sentence of the second paragraph was added dur-
ing the 1990 negotiations.
The parties each appointed members for a 12-member RPT
subcommittee and, in addition, for a 6-member oversight
committee, the RPT progression committee, so that a new
RPT progression program could be negotiated. Over the
course of the past few years, RPT training had been modified
repeatedly and, in fact, Respondent’s witnesses acknowl-
edged that familiarization had not been conducted at all for
RPTs during the spring of 1991. By August of that year
agreement was reached on terms for a new RPT progression
program. All subcommittee and progression committee mem-
bers executed it during that month.
For purposes of this proceeding, that program consists of
the same three above-enumerated phases as the progression
program that is supplanted. More specifically, the 1991 RPT
progression program provides that following classroom in-
struction, RPT trainees are to be assigned to one of three pri-
marily plutonium areas, as a home base. From there, they are
to be immediately rotated through the buildings in all three
of those areas, as well as through ones located in a specified
nonplutonium area, as prescribed in exhibit X of the progres-
sion program. Under the terms of the 1991 program, famil-
iarization is to be completed in 14 weeks within an overall
16-week calendar period. The 2-week excess serves as, in ef-
fect, a safety valve to allow for such matters as sick leave
and vacations.
That particular change—from familiarization with a par-
ticular area’s buildings as the RPT is assigned to work there
to familiarization with all four areas’ buildings immediately
after classroom instruction—was a particularly purposeful
491E.G. & G. ROCKY FLATS
one for the program’s negotiators. As Clifford Del Forge,
Respondent’s emergency planner with its emergency pre-
paredness department, and one of Respondent’s designees to
the subcommittee, testified,
Now, the 16-week cycle was developed specifically
with the idea in mind of providing these RPTs not only
with building-specific familiarization, but with also the
basic—some of the basic skills they would need to have
in order to operate on the floor, because when they
came out of familiarization, they were available for any
shift on the plant site, and had they just gone through
a building-specific familiarization to familiarize them
with a floor plan or how a building was laid out, I
mean, that process could have probably taken two to
three weeks, but they wouldn’t have been able to do
anything.
They would have had to have gone on a shift, and
they wouldn’t have been available, so they would have
had to train on shift, and it made more sense for them,
at least in our eyes when we wrote this program, it
made more sense to provide them with some up-front
kinds of things, and that is why the Exhibit X of this
document has a variety of sign-off sheets in here where
they learned basic kinds of skills, so that when they go
on a shift, once they become available, that they are at
least able to function.
Despite execution of the RPT progression program in Au-
gust 1991, it was not implemented as written, with classroom
training immediately provided to new RPTs; until the fol-
lowing January. Respondent admits that the reason for that
delay had been that its own training personnel had been un-
able to begin providing the program’s required classroom
training before January. Since the classroom instruction did
not commence until then, familiarization as contemplated by
the program was delayed until late February or early March
for the first group of RPT trainees and, of course, for other
groups that followed. By that time, there was a backup of
untrained RPTs because Respondent had begun expanding its
complement of employees in that classification.
One additional problem surfaced. As pointed out above,
familiarization had not been taking place during the spring
of 1991. When the 1991 RPT progression program had been
negotiated, the subcommittee and progression committee, as
well as officials who reviewed the sufficiency of the pro-
gram, had overlooked the limited familiarization provided to
employees who had begun working as RPTs during and be-
fore that period. In consequence, although those RPTs had
been familiarized with buildings in which they had been
working, as had been the procedure under the 1989 progres-
sion program, they had not received the full array of famil-
iarization as called for by exhibit X to the 1991 program.
During the late winter or early spring of 1992 the Union dis-
covered this absence of now-called-for familiarization and in-
sisted that it be provided to those experienced, but not fully
familiarized, RPTs.
That insistence generated a series of meetings from April
to June. Subcommittee members for both sides participated.
So too, at least at some meetings, did the Union’s president,
Dennis Wise, and vice president, Steve Cordova, as well as
Gene Ideker, then serving sometimes as acting general man-
ager for Respondent and sometimes as its assistant general
manager; Lorenzo Ubias, then Respondent’s manager of radi-
ological engineering; and, Michael T. Sullivan, Respondent’s
director of radiation protection. Despite Respondent’s offi-
cials’ pleas for relief—concerning the RPT shortage arising
from the Union’s insistence that experienced but not fully fa-
miliarized RPTs be put through the full familiarization pro-
gram called for by the 1991 RPT progression program—the
Union insisted that the program be fully followed. Ulti-
mately, as Ubias described it, ‘‘Mr. Ideker said, Well, here
is what we are going to do; we are going to put them all
in the program, and we are going to complete it by October
of 1992.’’
That decision did not truly solve Respondent’s problem.
For, when the subcommittee issued lists of familiarization
schedules for specific employees, Respondent’s scheduler
complained about the difficulty of having sufficient RPTs to
perform needed work, given that an experienced RPT had to
be assigned to each RPT trainee being familiarized. Such
complaints led to additional meetings during which at least
some union-designated subcommittee members agreed that
Respondent confronted problems as a result of the format of
familiarization specified in the 1991 RPT progression pro-
gram. Nevertheless, the Union was unwilling to modify that
portion of the program. Significantly, as described further in
section IV, infra, Ubias and Sullivan admitted that, despite
a less than satisfactory number of experienced RPTs, Re-
spondent had been able to conduct required operations
throughout this period and during succeeding months.
On July 14 General Manager James Zane and various
other officials of Respondent convened a meeting with Wise
and several other union officials. At that meeting, Zane ex-
plained that Respondent needed 12 RPTs to support upcom-
ing cleanup and package work but had a problem because so
many RPTs were then involved in familiarizing and be famil-
iarized. Zane explained that the Independent Radiological
Oversight Committee (IROC), described below, was sched-
uled to soon be at the Rocky Flats facility. He suggested that
the Union’s subcommittee meet with it to discuss problems
of familiarization and possible solutions to them, such as re-
verting to the pre-August 1991 building-specific approach.
Wise inquired how many RPTs were then undergoing famil-
iarization. Del Forge replied that there were 50. Wise then
asked how many would have by then completed familiariza-
tion had Respondent been following the program. Del Forge
answered that 25 would have been through it. The meeting
concluded with Wise saying that it appeared the problem was
not with the program, but with Respondent’s failure to fol-
low it. He opposed any change, especially to a building-spe-
cific format that, Wise opined, had hindered RPT utilization.
IROC is an independent three-member committee that,
pursuant to a contract with Respondent, periodically reviews
Respondent’s plant radiation protection program. According
to Director of Radiation Protection Sullivan, IROC’s function
is strictly advisory. On July 16 and 17 that committee con-
ducted its periodic review. Sullivan testified that at Zane’s
specific request, IROC reviewed the familiarization portion
of the progression program for RPTs. In the report which
followed that review, IROC stated, with reference to famil-
iarization,
492 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
At the request of senior site management, attention was
focused on the RPT Progression Program. . . . Specifi-
cally, management asked IROC to review the Famil-
iarization Program, the duration of Skill Objective
verification and the need for multiple signatures for
RPT performance verification. Based upon participation
in commercial Naval Nuclear and DOE radiation pro-
tection programs, IROC offers the following rec-
ommendations:
1. Familiarization Program
This portion of the progression program involves 16
weeks of assignment in four different areas during
which operational support activities cannot be as-
signed except on an overtime basis.
Recommendation:
a. Significantly reduce the Familiarization Program as it
now exists and provide area familiarization upon as-
signment to the area in consideration of potential
emergency response. This will allow RPTs to be as-
signed duties as they become qualified and ensure
that area familiarization is current with job assign-
ment.
Based on that report, Respondent prepared an RPT pro-
gression program position paper, stating with regard to famil-
iarization:
[Respondent] has recently been evaluating the Radiation
Protection Technologist (RPT) Progression Program.
[Respondent] does not believe that the current Progres-
sion Program is working in the best interests of [Re-
spondent] or the bargaining unit. An independent as-
sessment of the program by Rocky Flats’ Independent
Radiological Oversight Committee (IROC) has recently
confirmed this conclusion.
The familiarization segment of the Program was identi-
fied as a particularly weak program element. IROC rec-
ommends that this program element be eliminated and
be replaced with an area orientation upon reassignment
from their current homebase. While the desirability of
the familiarization program is questionable, the skill ob-
jectives portion is clearly desirable with modification.
As a result, [Respondent] proposes to suspend the cur-
rent familiarization portion of the progression program
and to return the RPTs currently in familiarization to
their permanent assignment buildings until the Union
and [Respondent] arrive at a mutually acceptable
change to the program which meets both groups’ needs.
During this period [Respondent] will emphasize the ac-
complishments of the skill objectives portion of the
program.
In order to achieve timely resolution to the problems
identified in the progression program, [Respondent]
proposes to:
(1) Immediately convene a task group of RPT Pro-
gression Committee Members.
(2) Have the team restructure the Progression Pro-
gram to incorporate IROC Recommendations.
(3) Formalize and implement the modified program
as soon as possible.
(4) Structure a feedback system to monitor progress
in the progression Program in meeting its objectives.
(5) Immediately initiate actions to bring skill objec-
tives signoffs up to date and to assure continued imple-
mentation and progress in the qualification program.
[Respondent] proposes to work with the Progression
Committee and with RPT Management to have com-
pleted the above tasks by August 29, 1992. [Respond-
ent] is hopeful that the Union shares managements [sic]
concern relative to the familiarization segment of the
RPT progression program and will assist management
in resolving this issue.
At a July 20 meeting with the Union’s vice president, Cor-
dova, accompanied by other union officials, Respondent pre-
sented this position paper.
After affording the union representatives time to read that
position paper during the meeting, Sullivan then reviewed its
contents, he testified, ‘‘in hopes that could work out an
agreeable arrangement to enable basically us to come to . . .
an agreement that this was an appropriate way to do busi-
ness.’’ Consistent with that position paper, Sullivan sug-
gested suspending familiarization as required by the 1991
RPT progression program and conducting a dialogue ‘‘to
make permanent fixes to the program.’’ Cordova asked what
would happen if the Union declined to do so. Sullivan re-
plied that in all probability Respondent would implement the
proposals. Cordova requested time to explain to Wise and
James D. Kelly, staff representative of the Union’s inter-
national body, what Sullivan had said, promising to get back
to Respondent the next day with an answer.
Although Cordova never again contacted Respondent re-
garding the subject, Kelly did. It is undisputed that he spoke
with Sullivan who confirmed what Cordova had reported
being said during his meeting with Respondent’s officials.
Kelly protested that Respondent could not unilaterally take
such action. However, Sullivan responded that suspension
was a management prerogative and that Respondent would
probably have to suspend familiarization, although it desired
to discuss the subject with the Union. Kelly asked that Re-
spondent put any such decision ‘‘in writing’’ to the Union
and Sullivan agreed to do so.
Sullivan testified that, having heard nothing from Cordova,
he met with General Manager Zane on July 21 and Zane ac-
cepted Sullivan’s recommendation that the position paper’s
proposed terms be implemented. In consequence, familiariza-
tion as specified in the 1991 RPT progression program was
suspended, participating RPT trainees were returned to their
home areas, and Respondent admittedly resumed building-
specific familiarization as it had been conducted before
agreement to the terms of the 1991 program. By letter to
Wise, Deputy Director Michael T. Davidson repeated essen-
tially the message, including the five proposals, quoted above
from the RPT progression program position paper. There-
after, Respondent attempted to discuss familiarization with
the Union, but the latter’s officials, at Wise’s direction, have
declined to discuss any changes in the program prescribed in
the 1991 RPT progression program. At no point has the
Union consented to any modification of the Program’s terms.
493E.G. & G. ROCKY FLATS
As a result, Respondent has simply continued familiarization
under the building-specific procedure that had been followed
prior to execution of that 1991 program.
IV. DISCUSSION
In a noncontractual setting the statutory bargaining obliga-
tion requires no more than that, prior to making changes in
mandatory bargaining subjects, a party bargain to impasse or,
at least, make a proposal to bargain about specified changes
which is met by the other party’s refusal to discuss that pro-
posal within a reasonable time. However, as discussed at the
commencement of section III, supra, once a term or condi-
tion of employment has been embodied in a collective-bar-
gaining contract, changes in it cannot be made simply on the
basis of an unresponded-to proposal for such changes.
‘‘[S]ince the parties reached agreement . . . Respondent
would not have satisfied its statutory obligations merely by
affording the Union notice and an opportunity to bargain,
rather than obtaining the Union’s consent, prior to imple-
menting changes.’’ Nestle Co., 251 NLRB 1023 fn. 3 (1980).
Consent of all parties must occur before contractual terms
concerning terms and conditions of employment can be
modified during the term of a collective-bargaining contract.
A contractual setting is the situation presented in the in-
stant case. Article XIV, section 5 of the parties’ contract spe-
cifically incorporates into the 1990–1993 collective-bar-
gaining contract ‘‘progression programs [ ] as may be mutu-
ally developed by [the parties] during the term of this Agree-
ment.’’ Accordingly, when the parties agreed to the terms for
an RPT progression program, and executed a document em-
bodying those terms in August 1991, those terms became no
less a ‘‘part of [their] Agreement’’ than other terms that had
been agreed on as a result of negotiations conducted in the
spring of 1990. Thereafter, each party was free to propose
and discuss modifications of the RPT progression program.
‘‘Section 8(d) does not prohibit a party to a collective-bar-
gaining agreement from proposing a midterm modification to
that agreement, but rather provides that a party to a collec-
tive-bargaining agreement may not be compelled either to
discuss such proposed changes or to agree to them.’’ (Cita-
tion omitted.) Bi-County Wholesale Beverage Distributors,
291 NLRB 466, 469 (1988). Thus, for the reasons discussed
at the beginning of section III, supra, a party is not free to
implement such proposed changes without obtaining permis-
sion of the other party. Since Respondent admittedly reverted
from the by-July contractually prescribed familiarization pro-
cedure to one followed before August 1991, and inasmuch
as Respondent did so over the Union’s continuing objections
and without the Union’s consent, it violated the statutory ob-
ligation to refrain from taking such action.
Seeking to avoid the conclusion that its conduct had vio-
lated the Act, Respondent has suggested an array of possible
defenses, some rooted in its contract with the Union while
others appeal to purportedly more general principles. At the
outset, it should be pointed out that much of the testimony
underlying those defenses seemed, as it was being advanced,
simply contrived to conceal the true reason for Respondent’s
July decision and actions. That is, in the final analysis, by
July Respondent’s officials had become disenchanted with
the by-then contractual familiarization process, because it
was not living up to the expectations that the program’s ne-
gotiators had hoped that it would, as described by Del Forge
in his testimony quoted in section III, supra. Accordingly,
Respondent decided to change to an administratively more
convenient method of familiarization, and did so notwith-
standing the Union’s protests. Then, during the hearing, it
scurried about in an effort to show at least some statutorily
countenanced justification for what it had done in July.
First, Respondent appears to attack the contractual status
of the 1991 RPT progression program, itself, by pointing out
that it had been signed only by the subcommittee and pro-
gression committee members, not by members of the bar-
gaining committee. However, it is not disputed that, before
final agreement had been executed, the negotiators’ product
had been submitted to the parties for review and approval by
higher authority in each.
At one point during the spring of 1991, the program’s ne-
gotiators had believed that agreement on its terms had been
reached and the Union’s subcommittee designees had signed
off on it, only to be overruled by higher authority within the
Union and to be forced to retract their signatures. Respond-
ent seems to attach some significance to that particular inci-
dent, as well as later instances where the subcommittee was
not allowed to make final decisions concerning the RPTs’
progression program. Apparently, Respondent contends that
the subcommittee is in the best position to evaluate the actual
success of specific progression programs and that the Union
was interfering with expeditious operations of such programs
by not allowing the subcommittee to exercise unfettered au-
thority to make changes to it. Yet, expediency is not a pre-
dominant consideration under any system of jurisprudence
and certainly not under the Act.
As a general proposition, subcommittees are not bodies
which operate with absolute authority. Their decisions and
actions are inherently subject to review and approval by the
principals who appoint their members. No particularized evi-
dence has been presented to show that Respondent and the
Union contemplated greater authority being possessed by the
subcommittee, nor by the progression committee, for RPTs.
To the contrary, all who testified concerning the subject stat-
ed that the subcommittee has authority only to administer the
program. Consequently, that higher authority in the Union re-
viewed and sometimes withheld approval of subcommittee
actions does not somehow demonstrate that the Union acted
obstinately nor, more significantly, in disregard of any statu-
tory obligation.
In fact, those witnesses of Respondent asked about the
subject freely admitted that the parties had reached agree-
ment on an RPT progression program in August 1991. Not
one of them claimed that agreement on that program had
been somehow tainted by the fact that bargaining committee
members had not actually executed the document embodying
the terms of the 1991 RPT progression program. Accord-
ingly, the evidence establishes that binding agreement had
been reached on that program’s terms.
Since that agreement concerns a progression program de-
veloped during the term of the 1990–1993 collective-bar-
gaining contract, its terms became ‘‘part of’’ that contract
pursuant to the above-quoted first sentence of the second
paragraph of article XIV, section 5. In reality, Respondent
never actually challenged the program’s contractual incorpo-
ration effected by virtue of that sentence. Instead, it targets
the following sentence—‘‘Any changes or modification to
these programs which are in conflict with the terms of this
494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
[A]greement can only be made by mutual agreement of [Re-
spondent] and the Union Bargaining Committee’’—and, in
essence, argues that such a limitation on the situs of author-
ity for changes and modifications creates an unworkable situ-
ation. Of course, such an argument hardly serves as a de-
fense to nonobservance of a provision to which Respondent
agreed. If Respondent made a bad deal, it simply will have
to wait until a succeeding contract is negotiated to correct it,
at least absent the Union’s consent to a midterm change.
In an apparent effort to fortify that argument, Respondent
presented evidence regarding the limited negotiation which
had occurred in connection with the addition in the 1990–
1993 contract of article XIV, section 5’s second sentence of
the second paragraph. It is undisputed that it had been added
at the Union’s behest and that it reproduces a sentence ap-
pearing in past contractual apprenticeship program language.
Yet, that evidence hardly supports a conclusion that the sen-
tence means something other than it plainly states. Nor does
it establish some type of qualification of the preceding sen-
tence’s incorporation language. Neither of those conclusions
can be established either by the language of the second sen-
tence nor by the negotiations leading to that sentence’s addi-
tion to the 1990–1993 contract.
Manager of Labor Relations Robin L. Piers testified that
the second paragraph’s second sentence had been added
without specification of ‘‘what was being done or what was
meant by adding that section.’’ The notes of the negotiating
session in which it had been proposed show no more than
that the Union had sought its inclusion ‘‘so that if there are
disputes in the document, the contract rules.’’ Thus, nothing
in the circumstances of its negotiation shows that the second
sentence had been intended as some form of qualification of
the preceding sentence’s plain statement of incorporation into
the contract of progression programs agreed to during the
contract’s term.
In sum, the first sentence of article XIV, section 5’s sec-
ond paragraph expressly incorporates into the contract the
terms of progression programs agreed on during the 1990–
1993 contract’s term. That plain expression is neither quali-
fied nor altered by the following sentence’s requirement of
assent at the bargaining committee level for progression pro-
gram changes or modifications that conflict with the con-
tract’s terms. More importantly, that second sentence does
not rise to the level of a waiver of Respondent’s statutory
obligation to refrain from unconsented to changes in contrac-
tual terms. Whatever the level at which consent could be
given for changes under that sentence’s provision, Respond-
ent admits that at no level—not at the subcommittee level,
not at the progression committee level, not at the bargaining
committee level—did the Union ever consent to suspension
of the 1991 RPT progression program’s familiarization provi-
sions and to reversion to familiarization as previously pro-
vided. To be sure, Wise directed his subcommittee subordi-
nates not to talk to Respondent about familiarization. How-
ever, as discussed above, that prohibition represented no
more than a principal’s normal exercise of inherent power to
restrict the authority of its agents, at least absent a showing
of contractual impropriety or lack of good faith. Neither has
been shown in connection with Wise’s direction to the
Union’s subordinates.
Respondent further argues, in connection both with ap-
prenticeship programs, from which the language of the sec-
ond sentence of article XIV, section 5’s second paragraph
had been appropriated, and with progression programs, that
past practice had been to allow essentially scheduling
changes to be made in those programs without prior action
by the bargaining committee. However, Respondent’s July
total suspension of the contractually specified familiarization
aspect of RPT training represents much more than a simple
scheduling change. In July Respondent entirely erased a
complete component of a training program. Moreover, by the
time of that action Respondent had been the contractor at
Rocky Flats for only 1-1/2 years. For the most part, past
changes described by Respondent’s witnesses had been ones
made when Rockwell had been the contractor there and, fur-
ther, had been made before negotiation and execution of the
1990–1993 contract. Regardless of the source of contractual
language, Respondent is not at liberty to simply portage
practice under different contracts with a different employer
over to its own relationship with the Union and, without ad-
ditional evidence showing the parties’ intent to do so, persua-
sively assert that the use of the same language, of itself, nat-
urally implies that the same practices are also transported. In
any event, of itself, a party’s past failure to protest
unconsented to midterm modifications does not establish a
waiver of its right to insist on observance of contractual pro-
visions in the future.
Shifting within the borders of the 1990–1993 collective-
bargaining contract and of the 1991 RPT progression pro-
gram that it incorporates, Respondent next argues that it pos-
sessed a contractual management right to suspend famil-
iarization as specified in the 1991 program. This portion of
Respondent’s testimony was the least convincingly advanced
of that given by its witnesses. It appeared contrived to sim-
ply construct some sort of defense for its July midterm modi-
fication. Indeed, Piers seemed to be simply flinging out bits
and pieces of various contract provisions in an almost
desparate effort to provide a contractual basis for Respond-
ent’s July midterm modification. Yet, he admitted that he
had been the official assigned to prepare Respondent’s re-
sponse to the charge. Significantly, he further admitted that
at no point in that response had he advanced any contractual
basis for Respondent’s suspension of familiarization. Never-
theless, if the contract allowed Respondent to suspend famil-
iarization, it cannot be deprived of a contractual right by its
officials failure to appreciate that right existed at the time of
taking action. Consequently, it is necessary to examine the
contractual provisions advanced by Respondent as a waiver
of the need to secure the union consent before modifying fa-
miliarization.
Piers pointed to phrases from four areas of the 1990–1993
contract which, he claimed, allowed Respondent to suspend
familiarization, as prescribed by the 1991 progression pro-
gram, without the Union’s consent. First, he referred to arti-
cle I, section 2, paragraph C, on page 2 of the contract. To
be sure, that paragraph does specify a series of ‘‘other rights
and responsibilities belonging solely to’’ Respondent, among
which are ‘‘the right to determine the nature and extent of
the work and operations to be performed; . . . assign work;
. . . decide the number and location of plant units; number,
size and makeup of Departments and Groups; . . . the sched-
ules.’’ However, the operative word in that quoted portion of
paragraph C is ‘‘other.’’ Paragraph B, which precedes it, per-
tains to ‘‘the right to contract with outside independent con-
495E.G. & G. ROCKY FLATS
tractors’’ and, then, paragraph C enumerates ‘‘other rights
and responsibilities belonging to’’ Respondent. In short, as
might be expected given their presence in the same contrac-
tual section, the two paragraphs must be read together.
They also must be read in the context of that section’s
paragraph A, which precedes both of them. It accords Re-
spondent ‘‘all rights, functions and authorities for the man-
agement of the Plant and the direction of the working force,
except as those rights are abridged by the terms of this
Agreement.’’ (Emphasis added.) None of the provisions of
the next two paragraphs, particularly paragraph C of article
I, section 2, make specific mention of progression programs.
Given that fact and the further fact that paragraph A contains
a specific limitation on management rights, precluding their
exercise to the extent they are ‘‘abridged by the terms of this
Agreement’’—which, of course, by July included familiariza-
tion as provided in the 1991 RPT progression program, by
virtue of article XIV, section 5, second paragraph—Respond-
ent cannot rely on the generalized rights recited in paragraph
C of article I, section 2 as contractual entitlement for its sus-
pension of familiarization as prescribed in the 1991 RPT pro-
gression program.
Piers next specified, as an asserted contractual waiver, the
language of article II, section 1, paragraph A on page 8 of
the 1990–1993 contract. He testified that he regarded it as
relevant to familiarization’s suspension, ‘‘Particularly to
when it speaks to operating in the best interests of the effi-
cient and safe operation of the plant.’’ Yet, that paragraph,
appearing under the subtitle ‘‘Intent of Parties,’’ states only
in general terms, ‘‘The Union and [Respondent] agree to
work sincerely and wholeheartedly to the end that the provi-
sions of the Agreement will be applied and interpreted fairly,
conscientiously, and in the best interest of efficient and safe
operation.’’
Nothing in that generalized statement of the parties’ intent
can be fairly construed as conferring some sort of implied
right for Respondent to modify, as it sees fit, all other spe-
cific contractual provisions ‘‘in the best interests of the effi-
cient and safe operation of the plant.’’ Certainly, nothing in
that paragraph specifically authorizes changes in progression
programs. Indeed, in the end, Piers was reduced to explain-
ing that suspending familiarization in July had been only ‘‘in
the spirit of working toward the efficient and safe operation
of the plant.’’ A waiver of particularized contract terms can
hardly be bottomed on some sort of ‘‘spirit’’ of contractual
management rights; such a waiver must be clearly and unam-
biguously set forth. So far as the record discloses, there was
no intention by the parties to so interpret article II, section
1, paragraph A that Respondent would enjoy an unfettered
license to change specific contractual provisions without the
Union’s consent.
The third contractual provision specified by Piers, as a
supposed contractual waiver of the need for union consent to
midterm modifications, appears in paragraph A of article II,
section 4, on page 11 of the contract, which, testified Piers,
‘‘speaks to work assignments applied with common sense
and flexibility, in order to give proper consideration to the
practical problem of production involved.’’ According to
Piers, ‘‘we felt there was a legitimate business need to con-
sider and address making some changes in the RPT progres-
sion program.’’ However, the latter does not follow from the
former. The contractual language referred to by Piers is part
not of a management-rights provision, but of a provision for
‘‘Work Assignment—Jurisdiction.’’ It has nothing to do with
changes in progression programs. Rather, as stated in the first
sentence of the paragraph referred to by Piers, it pertains to
Respondent’s ‘‘right to assign work . . . giv[ing] careful
consideration to the assignment of work to the appropriate
classification.’’ It is in that context that the provision con-
tinues by allowing for application of ‘‘common sense and
flexibility in order to give proper consideration to the prac-
tical problem of production involved’’ and to an agreement
by the parties ‘‘to apply a rule of reason, consistent with the
above, in connection with work assignment disputes under
this Agreement.’’ (Emphasis added.)
The complete inapplicability of article II, section 4 to Re-
spondent’s total suspension of familiarization as prescribed
by the 1991 RPT progression program is shown by para-
graph B of article II, section 4: ‘‘In accordance with the
above, the parties agree that employees may be required to
perform some work incidental and related in time and place
to their regularly assigned duties for a reasonable period of
the time (which does not exceed one hour) in an 8-hour pe-
riod.’’ Obviously, Respondent’s ongoing suspension of the
1991 program’s familiarization requirements has long ex-
ceeded the allowance of that provision.
Respondent’s final asserted contractual management right
to suspend familiarization under the program appears in the
Radiation Protection Technologist Assignment Areas letter of
understanding, on page 109 of the 1990–1993 contract, to the
extent relevant, it recites:
It is understood that temporary assignment between lo-
cations may be made by [Respondent] on the basis of
need and at the conclusion of such assignment the em-
ployee will be returned to his former location. It is fur-
ther understood that a balance of experienced and inex-
perienced people must be maintained within each loca-
tion. Therefore, moves after posting may be delayed or
temporary assignments made for training purposes.
[Emphasis added.]
Piers testified that the last sentence provides ‘‘some area of
latitude relative to the timing of those moves,’’ as well as
to whether moves are to be made at all. Although that ap-
pears to be what is permitted in certain limited situations,
complete suspension of contractually specified familiarization
goes well beyond what the language of that letter of under-
standing contemplates.
As the underscored portions demonstrate, the letter of un-
derstanding allows only ‘‘temporary assignments.’’ Conced-
edly, after suspending the 1991 RPT progression program’s
familiarization procedure, Respondent never resumed hon-
oring that procedure and never ‘‘returned [the RPT-trainees]
to [their] former location[s]’’ where they were being famil-
iarized in July, at the time that Respondent reassigned them
to their home areas. Moreover, Respondent adduced no evi-
dence of any posting for RPT vacancies having occurred
prior to suspension of contractually prescribed familiarization
to late July. Yet, the overall subject of the letter of under-
standing, read in its entirety, is that of filling RPT vacancies:
‘‘Radiation Protection Technologist vacancies will be filled
by posting the location and shift of the available position.’’
In fact, Respondent’s July concern had not been with vacan-
496 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cies in the position of RPT. Rather, those positions were
populated, but not with sufficient experienced RPTs to make
assignment of RPTs convenient for Respondent’s personnel.
In sum, while the letter of understanding appears to provide
some assignment relief to Respondent when there are vacan-
cies for RPTs, it is not so broadly worded as to permit total
revision of a contractually prescribed component of RPT
training.
Moving from the 1990–1993 contract’s terms to those of
the 1991 RPT progression program, itself, Respondent’s wit-
nesses claimed that two provisions of the latter’s section I
allow total suspension of its familiarization provisions, The
first is paragraph B on page 5: ‘‘EVERY ATTEMPT
SHALL BE MADE BY ALL PARTIES TO UTILIZE
TRAINEES IN AREAS SPECIFICALLY RELATED TO
THE SCOPE OF WORK IDENTIFIED IN THIS DOCU-
MENT.’’ Piers claimed that this provision permitted Re-
spondent to determine how and where trainees would be uti-
lized. Yet, nothing in paragraph B appears to allow that utili-
zation to be pursued to the point where other provisions of
the program are abrogated. Indeed, Director of Radiation
Protection Sullivan acknowledged that paragraph B did not
specifically say that it conferred a prerogative on manage-
ment and conceded that it ‘‘indicates to me that you attempt
to utilize them in the way that is laid out in the document.’’
Emergency Planner Del Forge testified that paragraph B’s
language had been inserted at his insistence to prevent RPTs
from being assigned to work that was not encompassed by
the normal duties of their job classification. For example,
during a prior year, RPTs awaiting training had been as-
signed janitorial work. That had been the type of assignment
that Del Forge had been trying to prevent by insisting on in-
clusion of what has become paragraph B’s language. Obvi-
ously, that has no application whatsoever to the act of sus-
pending the 16-week familiarization program prescribed in
the 1991 program for RPT trainees.
Equally inapplicable is paragraph K of section I, on page
7 of the 1991 RPT progression program: ‘‘AS NEW AREAS
OF ASSIGNMENT OR TRAINING REQUIREMENTS ARE
IDENTIFIED, CHANGES IN THE TRAINING SCHEDULE
MAY BE NECESSARY.’’ Respondent has identified neither
new areas nor new training requirements that arose after Au-
gust of 1991. Moreover, as Sullivan admitted, paragraph K
does not include language that accords a prerogative to Re-
spondent. In fact, Del Forge frankly admitted that he did not
know what authority Respondent would have to make
changes under that paragraph. In short, the record is devoid
of evidence of an understanding by the parties that would
have allowed Respondent to suspend the 1991 program’s fa-
miliarization procedure based on either paragraphs B or K.
In the final analysis, the testimony of Sullivan and of Dep-
uty Director of Labor Relations Michael T. Davidson show
that Respondent simply had been unconcerned with specific
contract provisions when modification of familiarization had
been decided on and implemented in July. Although con-
ceding that complete elimination of that program would
probably not be a management prerogative. Sullivan nonethe-
less asserted that suspension of it would be an inherent pre-
rogative of the flexibility needed by management to run a
business. Of course, the suspension has become so prolonged
as to effectively constitute elimination of familiarization pre-
scribed by the 1991 RPT progression program. And, in fact,
Sullivan continued to assert that even had the Union nego-
tiated regarding changes to that familiarization procedure, but
had no agreement for change been concluded, then he be-
lieved it would be his prerogative to make the changes any-
way. Similarly, Davidson flatly asserted that familiarization
was not a term and condition of Respondent’s contract with
the Union and, accordingly, modification to its terms could
be effected by Respondent as it willed. In short, contractual
entitlement had simply not been a factor in Respondent’s
July decision to ignore the Union and suspend familiarization
as required by the 1991 program’s terms.
Occasionally, some of Respondent’s witnesses referred to
its July and post-July efforts to discuss modifying famil-
iarization as a contract reopening, or as an effort to reopen
it. Lest there be any question, it should be understood that
neither the 1991 RPT progression program nor the 1990–
1993 contract into which it has become incorporated, by vir-
tue of the contract’s article XIV, section 5, provides for mid-
term reopening to negotiate about modification of such mat-
ters as RPT familiarization. Consequently, this is not a case
presenting a reopener clause. ‘‘Reopener clauses are contrac-
tual agreements to renegotiate certain items at a later date.’’
Lear Siegler Inc. v. NLRB, 890 F.2d 1573, 1574 fn. 1 (10th
Cir. 1989). ‘‘The fact that the Unions agreed to discuss the
Respondent’s proposed modifications and offered counter-
proposals does not signify that the Unions agreed to reopen
the contract.’’ Mack Trucks, 294 NLRB 864, 865 (1989).
Accord: Bi-County Wholesale Beverage Distributors, supra,
and cases cited therein. Accordingly, the principles devel-
oped for negotiating pursuant to reopening provisions are not
applicable to the facts presented in the instant case.
Having failed to demonstrate that the collective-bargaining
contract or its incorporated RPT progression program al-
lowed it to suspend familiarization as prescribed in the latter,
Respondent next points to purported failure by the Union,
itself, to honor the program’s provisions on particular occa-
sions. At the outset, the Act does not usually countenance
such a ‘‘if I’m one, you once were too’’ defense as being
a valid one. If there were prior unconsented to midterm
modifications by the Union, Respondent’s remedy was to file
a charge because of them, not to proceed vigilante-like to
later make its own modifications. Furthermore, whatever pos-
sible modifications the evidence shows had occurred before
July were not ones that obliterated an entire portion of the
progression program executed for RPTs in August 1991.
Nor, were they ones that rendered the program completely
inoperable. Rather, the program continued to be operative in
July. Consequently, neither party was free to unilaterally dis-
regard its terms, particularly ones pertaining to familiariza-
tion, because of some purported past nonobservance of one
or more of its other terms.
The weakness of this defense, in general, is illustrated by
an event which Respondent seems to try to elevate to a
prominent position. As described in section III, supra, Re-
spondent had been unable to provide the classroom instruc-
tion mandated by the program until January. Some sub-
committee members, apparently from both sides, decided that
it would be a fine idea to save some overall training time
by, during the pre-January period, conducting partial famil-
iarization of some RPT trainees. Of course, such action re-
versed the training order specified by the 1991 RPT progres-
sion program and, at a level or levels higher that the sub-
497E.G. & G. ROCKY FLATS
committee, the Union objected to it. In fact, Wise went so
far as to direct subordinates to pick up RPT trainees’ books
in which sheets for various skills learned by trainees were
being signed off under the ad hoc familiarization process.
Obviously, Wise’s direction was an act of self-help dis-
playing a certain bravado. But, it was not one that effected
a change in RPT progression training. To the contrary, it pre-
vented a practice from being developed of, in effect, famil-
iarizing RPTs before they received classroom instruction.
And, of course, it occurred because of Respondent’s own
noncompliance with the program’s specification of imme-
diate classroom instruction for RPTs. Indeed, at some points
it appeared as if Respondent’s witnesses were relying on that
disregard by Respondent to evidence a practice of non-
compliance with the program’s schedule of training for
RPTs—reliance not dissimilar from a plea of orphancy by a
child who has murdered his own parents. To be sure, the
delay in initiating classroom instruction had been caused by
the unpreparedness of Respondent’s training personnel. How-
ever, intrainstitutional difficulties are not a satisfactory de-
fense to failure to honor a contract. In any event, absent a
showing, not present here, that they effectively nullified the
entire agreement of the parties, unrelated past nonobservance
or modification of some contract terms hardly gives rise to
entitlement to thereafter ignore its terms whenever it suits a
party to do so.
In addition to its contentions relating directly to the collec-
tive-bargaining contract and its incorporated 1991 RPT pro-
gression program, Respondent advances certain more gen-
erally based arguments. First, while not disputing that em-
ployee training is a term or condition of employment within
the meaning of Section 8(d) of the Act—especially where, as
here, it directly affects workplace and employee safety—Re-
spondent argues that a ‘‘temporary suspension [is not] a
mandatory subject of bargaining.’’ Whatever the merit of
whether or not ‘‘suspension‘‘ as a subject is one, ‘‘suspen-
sion’’ as a verb clearly is encompassed by an employer’s
bargaining obligation when it is applied, as here, to a manda-
tory bargaining subject. The mandatory subject here is an as-
pect of employee safety training. Suspension is the action
which Respondent took with regard to it. That worked a
change in employment terms no less than would a suspen-
sion of contractual bonuses or holidays for employees. With
respect to each of these employment terms, suspension of
thier implementation would operate as a modification: ‘‘a
change which has a continuing impact on a basic term or
condition of employment.’’ C & S Industries, 158 NLRB
454, 458 (1966).
As to the related contention that the suspension had been
only a temporary one, the fact is that it has continued since
July and, accordingly, can hardly be characterized as tem-
porary, under the broadest definition of that term. Even if
Respondent truly had intended in July for it to be of only
temporary duration, a temporary suspension of an employ-
ment term is ‘‘more than a de minimus failure to adhere to
contractually mandated terms and conditions of employ-
ment.’’ Zimmerman Painting & Decorating, 302 NLRB 856,
857 (1991).
In fact, the record refutes any argument that, in July, Re-
spondent had intended suspension of familiarization, as spec-
ified in the 1991 RPT progression program, to be merely
temporary. To the contrary, it intended to suspend that con-
tractual training phase until a replacement procedure for it
could be negotiated. Its own progression program position
paper, quoted in section III, supra, makes that quite plain:
‘‘As a result, [Respondent] proposes to suspend the current
familiarization portion of the Progression Program . . . until
the Union and [Respondent] arrive at a mutually acceptable
change to the program.’’ In short, Respondent had no inten-
tion of resuming familiarization in its by-then contractually
prescribed form.
That was made even more plain by Respondent’s own wit-
nesses. For example, asked if familiarization’s suspension
had been intended as a 5-week measure or had been intended
to last until the Union agreed to make it permanent, Manager
of Labor Relations Piers answered:
And that really gets down to the heart of the matter,
doesn’t it? I don’t think the issue was, will they agree
to this or will they agree to that. I think the issue was,
Hey, can we sit down and have some dialogue, have
some discussion, have some problem-solving relative to
the progression program.
Asked if that dialogue would include agreement by the
Union to perpetuation of familiarization’s suspension during
it, Piers replied, ‘‘I must say that I think there were other
ways that it could have been done, and with some meaning-
ful dialogue on both sides, I think there were some other al-
ternatives.’’ That Respondent did not contemplate resuming
familiarization as contractually provided was made even
more plain by Director of Radiation Protection Sullivan:
The details on what would constitute reimple-
mentation of the familiarization program was not clear
at that time. . . . if the need for RPTs had dropped off
completely, we might very well ha[ve] reinstated that
program. . . . the intent was rather to discuss with the
[U]nion and arrive at a mutually acceptable solution to
what we felt like were issues in the progression pro-
gram and the familiarization portion of the program in
particular.
What emerges from the evidence is that Respondent want-
ed to renegotiate familiarization procedures then contrac-
tually existing. As was its statutory right, the Union declined
to do so. As a result, Respondent unilaterally suspended fa-
miliarization procedures under the 1991 RPT progression
program and returned to the pre-August 1991 building-spe-
cific format. Thereafter, Respondent refused to resume con-
tractual familiarization until the Union agreed to negotiate
about changing its provisions, a course that Respondent had
already determined that it regarded as necessary. In sum
there was nothing temporary about what Respondent did in
July. Its conduct then had been but part of an overall inten-
tion to compel renegotiation of a contract’s term despite the
objections of the Union. Under the principles set forth at the
beginning of section III, supra, such conduct violates the ob-
ligation to refrain from midterm modifications absent consent
of all parties.
Third, Respondent argues that the nature of operations at
Rocky Flats had changed over the years as production had
been steadily cut back and, ultimately, terminated in January
of 1992. Thus, Respondent further argues, there had been ‘‘a
basic change in the fundamental direction of the firm’’ that
498 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
left Respondent ‘‘free to act independently and only bargain
about the effects of it decision’’ under the doctrine First Na-
tional Maintenance Corp. v. NLRB, 452 U.S. 666 (1981).
The problem with that argument is that it simply is inappli-
cable to a situation such as the one presented in the instant
case.
While production ceased at Rocky Flats, those of Re-
spondent’s witnesses questioned about the subject conceded
that Respondent had continued conducting operations there
and, further, that RPTs had continued to be employed in con-
nection with those continued operations. In fact, Respondent
increased its RPT complement during the spring. Further, it
is undisputed that RPTs’ duties had remained essentially the
same after August 1991 as they had been prior to execution
of the progression program for them. In sum, at no point has
Respondent shown with any degree of particularity that ces-
sation of production at Rocky Flats, standing alone, had any
meaningful effect on either the continued employment of
RPTs there or on the nature of their duties. In these cir-
cumstances, the doctrine of First National Maintenance
Corp. is inapplicable to Respondent’s situation and does not
allow the suspension of familiarization as prescribed by the
1991 RPT progression program.
Fourth, Respondent argues that its July and post-July con-
duct regarding familiarization had not been undertaken in
bad faith. Although that argument is subject to factual dis-
pute, given Respondent’s cavalier approach to its statutory
obligation to refrain from unconsented-to midterm contrac-
tual modifications, the fact is that Respondent’s state of mind
is not a relevant consideration to the statutory violations al-
leged here. ‘‘In situations involving a unilateral change in
contractually established terms and conditions of employ-
ment, good or bad faith is not a relevant consideration.’’ (Ci-
tation omitted.) Sturdevant Sheet Metal Co. v. NLRB, 636
F.2d 271, 275 (10th Cir. 1980).
Finally, based on the inherently dangerous operations con-
ducted at Rocky Flats, Respondent makes a sometimes emo-
tion-laden argument that, in essence, safety concerns had ne-
cessitated modification of familiarization as prescribed in the
1991 RPT progression program. No one can deny the par-
ticular validity of safety concerns there. However, in section
III, supra, I have reproduced that portion of the July IROC
report which pertains to familiarization. As can be seen by
reading it, nothing in that report mentions safety consider-
ations as a basis for the report’s criticism of familiarization
as then being conducted by Respondent. In that same section,
I also have reproduced in full the text of Respondent’s own
RPT progression program position paper. Although that doc-
ument refers to contractual familiarization as ‘‘a particularly
weak program element’’ and as one not ‘‘working in the best
interests of [Respondent] or the bargaining unit,’’ one
searches the report in vain for even a mention of possible
safety problems posed by familiarization under the 1991 RPT
progression program.
Nor is any particularized risk to safety disclosed by the
testimony of Respondent’s witnesses. To be sure, by the
spring Respondent had begun to experience problems be-
cause so many RPT trainees were being familiarized and so
many experienced RPTs were familiarizing them. Yet, it
should not be overlooked, as Wise inferentially pointed out
during his July 14 meeting with Zane, described in section
III, supra, that Respondent’s own failure to promptly follow
the program, by delaying commencement of classroom in-
struction until January, had contributed to the delay in com-
pleting training of some new RPTs and, concomitantly, to
the midyear shortage of experienced RPTs.
It also should not be overlooked that, so far as the record
discloses, the summer shortage of experienced RPTs did not
appear to be a lasting problem. As new RPTs, and experi-
enced but unfamiliarized RPTs, completed familiarization,
the shortfall would abate, as least so far as Respondent’s evi-
dence shows. Consequently, even a truly temporary shortage
could have been corrected by measures less drastic than com-
plete and permanent obliteration of familiarization as con-
tractually prescribed in the 1991 RPT progression program.
I advisedly use the word ‘‘truly’’ in the immediately pre-
ceding sentence. For, as pointed out in section III, supra,
Ubias, who managed radiological operations throughout the
summer, and Sullivan, the director of radiological operations,
gave testimony that undermines any argument that risks to
safety necessitated the July midterm modification. Thus, Re-
spondent’s witnesses agreed that, used prudently, overtime
had been one means by which RPT shortages had been alle-
viated historically at Rocky Flats. Asked, with reference to
the summer situation, ‘‘Could you, with overtime, do the job
of having sufficient personnel to meet your safety envelopes
[the minimum number of RPTs to assure safe operations]
with so many involved in the familiarization program or off
for other reasons [sick or vacation leave],’’ Ubias conceded,
‘‘Barely, yes.’’ Similarly, asked if there had been ‘‘enough
people to make sure that the safety envelopes were actually
safety envelopes,’’ Sullivan admitted, ‘‘Yes, sir.’’ Apparently
appreciating the significance of that answer, Sullivan seemed
to then try to mitigate its impact in his subsequent testimony.
However, in the end, he never withdrew his admission.
In sum, the record simply does not support Respondent’s
argument that it had available so few experienced RPTs in
the summer that danger to personnel and the environment
justified discontinuance of contractually prescribed famil-
iarization. Instead, its true motivation appears to have been
shown by the various complaints about the program’s famil-
iarization procedures voiced by Respondent’s witnesses: that
it caused extra expense, that it was inconvenient to admin-
ister, that many of exhibit X’s skill factors were no longer
utilized, that the 1991 negotiated familiarization format had
proven simply not as effective as its negotiators had antici-
pated. However, those are the types of problems that can
arise under any contract. They should be addressed when a
contract is negotiated to succeed the 1990–1993 one. They
do not warrant unconsented-to midterm modifications of an
existing contract.
CONCLUSION OF LAW
E.G. & G. Rocky Flats, Inc. has committed unfair labor
practices affecting commerce by suspending familiarization
as prescribed in its 1991 RPT progression program, incor-
porated into its 1990–1993 collective-bargaining contract,
without the consent of United Steelworkers of America,
Local Union 8031, AFL–CIO–CLC—the representative of
employees in an appropriate bargaining unit of all hourly
paid production and maintenance employees and including
crewleaders employed by E.G. & G. Rocky Flats, Inc., at
the Department of Energy Rocky Flats Plant, but excluding
all salaried personnel, office clerical employees, guards,
499E.G. & G. ROCKY FLATS
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
3 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
National 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.’’
watchmen, professional personnel, and supervisors as defined
in the Act—and by thereafter conducting familiarization in a
different manner, refusing to continue implementing it in the
manner required by the 1990–1993 contract between the par-
ties.
REMEDY
Having concluded that E.G. & G. Rocky Flats, Inc. has
engaged in certain unfair labor practices, I shall recommend
that it be ordered to cease and desist therefrom and, further,
that it be ordered to take certain affirmative action to effec-
tuate the policies of the Act. With respect to the latter, while
the parties represented that there has been no loss of pay by
RPTs, it shall be ordered to restore familiarization as pre-
scribed by the 1991 RPT progression program and to apply
them to all RPTs who have not been permitted to participate
in familiarization as specified by that program.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, E.G. & G. Rocky Flats, Inc., Golden,
Colorado, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Modifying familiarization procedures as prescribed by
the 1991 RPT progression program, or any other contractual
term or condition of employment of employees in the appro-
priate bargaining unit described below, during the term of a
collective-bargaining contract with and without first obtain-
ing the consent of, United Steelworkers of America, Local
Union 8031, AFL–CIO–CLC. The appropriate bargaining
unit is:
All hourly paid production and maintenance employees
and including crewleaders employed by E.G. & G.
Rocky Flats, Inc. at the Department of Energy Rocky
Flats plant, but excluding all salaried personnel, office
clerical employees, guards, watchmen, professional per-
sonnel, and supervisors as defined in the Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Restore and observe familiarization as prescribed by
the 1991 progression program.
(b) Apply the procedures for familiarization as prescribed
by the 1991 RPT progression program to all RPTs who have
not been permitted to participate in familiarization as speci-
fied by that program.
(c) Post at its Golden, Colorado office and place of busi-
ness copies of the attached notice marked ‘‘Appendix.’’3
Copies of that notice, on forms provided by the Regional Di-
rector for Region 27, after being signed by its authorized
representative, shall be posted by the Respondent imme-
diately upon receipt thereof and be maintained by it for 60
consecutive days thereafter in conspicuous places, including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT modify familiarization procedures as pre-
scribed by the 1991 RPT progression program, nor modify
any other contractual terms or conditions of employment of
employees in the appropriate bargaining unit described below
during the term of a collective-bargaining contract with and
without first obtaining the consent of United Steelworkers of
America, Local Union 8031, AFL–CIO–CLC. The appro-
priate bargaining unit is:
All hourly paid production and maintenance employees
and including crewleaders employed by E.G. & G.
Rocky Flats, Inc. at the Department of Energy Rocky
Flats plant, but excluding all salaried personnel, office
clerical employees, guards, watchmen, professional per-
sonnel, and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL restore and observe familiarization as prescribed
by the 1991 RPT progression program.
500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL apply the procedures for familiarization as pre-
scribed by the 1991 RPT progression program to all RPTs
who have not been permitted to participate in familiarization
as specified by that program.
E.G. & G. ROCKY FLATS, INC.