Milwihite Co. Inc.

National Labor Relations Board - Board DecisionsSep 21, 1988

290 N.L.R.B. 1150 (N.L.R.B. 1988)

1150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Milwhite Company, Inc. and Eddie Lowery. Case 10-CA-23256 September 21, 1988 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On June 30, 1988, Administrative Law Judge J. Pargen Robertson issued the attached decision. The Respondent filed exceptions and a supporting brief. 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 brief and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Milwhite Company, Inc., Attapulgus, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Gaye Nell Hymon, Esq., for the General Counsel. Ralph C. Smith, Jr., Esq. (Smith, Perry & Epps), of Bain- bridge, Georgia, for the Respondent. Eddie Lowery, of Albany, Georgia, Staff Representative. DECISION STATEMENT OF THE CASE J. PARGEN ROBERTSON , Administrative Law Judge. This matter was heard in Bainbridge, Georgia, on 3 June 1988 pursuant to a complaint that issued on 21 April 1988, alleging that Respondent engaged in conduct viola- tive of Section 8(a)(5) and (1) of the Act. The issue presented is whether Respondent violated Section 8(a)(5) and (1) by refusing to negotiate with its employees' bargaining representative in the presence of two members of the Union's negotiating committee. One of those two, the president of the Union, is an employee of a business competitor of Respondent. The other objec- tionable committee member is an employee of Respond- ent whose involvement in negotiations would, according to Respondent, seriously interfere with Respondent's production. Respondent admitted complaint allegations regarding the charge; that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act; that United Steelworkers of America, AFL-CIO-CLC, Local Union 170-02 is a labor organization (Union); that the Union is, and has been, the exclusive representative of the employees in a described production and mainte- nance bargaining unit at Respondent's Attaplugus, Geor- gia facility since about 1963; that it and the Union have been parties to successive bargaining agreements since 1963; and that the Union requested Respondent to bar- gain collectively on 29 January 1988. The complaint alleges that Respondent refused to bar- gain on 5 and 10 February 1988. Respondent in its answer alleged: Respondent denies that it refuses and continues to refuse to bargain collectively in good faith with the Union, but admits that Respondent refuses to bar- gain with a Committee which includes James Mitchell an employee of a competitor in the local area, and Raymond Anderson, an employee of Re- spondent because of the detrimental effect his inclu- sion on the Committee would cause to the Compa- ny's production. Respondent's plant manager, Morey White, testified that Respondent has two competitors in the area of its facility, Flordine Company in Quincy, Florida, and En- gelhard Corporation in Attapulgus, Georgia. According to White all three companies compete in business and in recruiting employees because they all engage in the mining of the same product-Attapulgite Clay. According to White, Respondent has consistently re- sisted bargaining when the Union wished to include on its bargaining committee an employee or employees of one of its competitors. From 1963 until 1988 the Union had agreed not to include an employee of a competitor on its bargaining committee. Morey White described Re- spondent's basis for resisting a competitor employee on the union committee: Because of the real stiff competition. I'm sure that we have, are trying to develop products and they are too, specialty products to upgrade the quality of our material in order to keep our custom- ers. And we feel like a competitior sitting in, things come out in negotiations that, you know, we don't particularly want our competitor to know about. James Mitchell has been president of the Union for 9 years. During that time-in fact for the last 14 years- Mitchell has been a rank-in-file employee of Engelhard Corporation-one of Respondent's two competitors. Mitchell testified that he was elected by the union mem- bership to serve as chairman on the 1988 bargaining committee. As to Raymond Anderson, who was elected to the 1988 negotiating committee when the Union realized that none of the employee representatives on that committee were in Anderson's division at Respondent's facility- Morey White testified that Anderson is one of two bull- dozer operators at Respondent's facility, that the bulldoz- er operators remove the overburden from the clay and that Anderson's absence from work would throw about 50 percent of the production employees with no work to perform (i.e., the production employees' work depends on the bulldozer operators remaining ahead of them in removing the overburden). Respondent contends that it could not afford to have Anderson out of work. 290 NLRB No. 147 MILWHITE CO When the Union on 13 April 1988 offered to bargain during nonwork periods, Respondent contended that long bargaining sessions would likely result in Anderson not being able to perform his work in an acceptable fash- ion the next workday Respondent continued to refuse to negotiate with Anderson present in negotiations Conclusions The general rule in this area finds its genesis in Section 7 of the National Labor Relations Act Employees shall have the right to bargain collectively through representatives of their own choosing The Second Circuit, United States Court of Appeals, recognized employees' right to select their own repre- sentatives, in the following language Section 7 of the National Labor Relations Act, 29 US C Â§ 157 , guarantees certain rights to em- ployees, including the right to join together in labor organizations and "to bargain collectively through representatives of their own choosing " This right of employees and the corresponding right of em- ployers, see section 8 (b)(1)(B) of the Act, 29 U S C Â§ 158 (b)(1)(B), to choose whomever they wish to represent them in formal labor negotiations is funda- mental to the statutory scheme In general , either side can choose as it sees fit and neither can control the other's selection , a proposition confirmed in a number of opinions , some of fairly ancient vintage For example , the following asserted objections to bargaining representatives have all been rejected as defenses to charges of refusal to bargain that a local union president could not act for the interna- tional union in grievance handling , see Prudential Insurance Co of America v NLRB, 278 F 2d 181, 182-183 (3d Cir 1960), that an AFL "general orga- nizer," not a member or officer of the union, could not bargain for the latter, see NLRB v Deena Art- ware, Inc, 198 F 2d 645, 650-651 (6th Cir 1952), cert denied, 345 US 906, 73 S Ct 644, 97 L Ed 1342 (1953), that employees could not be represent- ed by a local union, a majority of whose members were employed by a rival industry and which the employees were not eligible to join, see Pueblo Gas & Fuel Co v NLRB, 118 F 2d 304, 307-308 (10th Cir 1941), and that an international union represent- ative could not negotiate for a local , see Oliver Corp, 74 NLRB 483 (1947) [General Electric Com- pany v NLRB, 412 F 2d 512, 516, 517 (2d Cir 1969)] However, as set out by the Fourth Circuit, the em- ployees' right is not absolute At the outset, we note that section 7 of the Act, 29 U S C Â§ 157, guarantees employees the right 'to bargain collectively through representatives of their own choosing ' While the Supreme Court has recognized this right as fundamental to the statutory scheme, NLRB v Jones & Laughlin Steel Corp, 301 1151 U S 1, 33, 57 S Ct 615, 622, 81 L Ed 893 (1937), it is not absolute , the employer may refuse to negoti- ate with the union bargaining committee if he can carry the heavy burden of showing that the selected representatives present a clear and present danger to the collective bargaining process IBEW v NLRB, 557 F 2d 995, 998 (2d Cir 1977), NLRB v David Buttenck Co, 399 F 2d 505, 507 (1st Cir 1968), Harley Davidson Motor Co, 214 N L R B 433 (1974) This rule requires the employer to show ex- ceptional circumstances-such as bad faith or ulten- or motive-underlying the union's choice of its bar- gaining team members Mere inclusion of persons outside the negotiating unit does not constitute ex- ceptional circumstances Indiana & Michigan Elec- tric, 599 F 2d 185 (other units), Minnesota Mining & Manufacturing Co v NLRB, 415 F 2d 174, 177-78 (8th Cir 1969) (other locals), General Electric Co v NLRB, 412 F 2d 512, 517-20 (2d Cir 1969) (other international unions), Standard Oil Co v NLRB, 322 F 2d 40, 44 (6th Cir 1963) (other locals) Fur- ther, the employer's claim that the union 's use of outsiders is an unlawful attempt to compel com- panywide or multiplant bargaining also is insuffi- cient unless the employer can demonstrate that the union actually attempted to bargain outside unit boundaries Indiana & Michigan Electric, 599 F 2d at 191, Minnesota Mining, 415 F 2d at 178, General Eelctnc, 412 F 2d at 519-20 [Procter & Gamble Mfg Co v NLRB, 658 F 2d 968, 976, 977 (4th Cir 1981) ] Therefore, the question is whether the members selec- tion of James Mitchell and Raymond Anderson present- ed a "clear and present danger to the collective bargain- ing process" or, as the Board has held in subsequent cases, whether the evidence shows that the presence of the other party would create ill will and make bargaining impossible Respondent argued that it was necessary for the Gen- eral Counsel to prove that it acted without animus in re- fusing to negotiate The cases cited by Respondent are inapposite to an 8(a)(5) allegation None of the cases dealing with an issue similar to the instant case concerns itself with whether the Employer was motivated because of union animus This case presents a question , inter alia , of whether Respondent directly interfered with its employees' Sec- tion 7 rights If proven, that act alone constitutes a viola- tion and it is not necessary to question Respondent's motive While "motive" is a matter of concern, it is of concern only in determining whether Respondent's motivation was backed by evidence showing the existence of "clear and present danger" or "ill will " As to James Mitchell, at first blush Respondent's con- cern appears reasonable However, the hearing revealed consideration beyond the initial reaction stages The testimony of Morey White appeared to raise two areas of concern by Respondent (1) White felt he could not negotiate in good faith with 1152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD James Mitchel present , i and (2) matters would surely arise during negotiations that Respondent would not wish to reveal to its business competitors 2 Both the above concerns are significant However, nei- ther survived the hearing as substantial obstacles to bar- gaining Although White felt he could not negotiate in good faith with Mitchell present, he was unable to articulate a sound basis for his discomfort other than to show con- cern for confidential knowledge Moreover , White's tes- timony did not show that , whatever his concerns, those concerns could not have been resolved through discus- sion with the Union As to his concern with confidential knowledge, Re- spondent admitted that it fully expected the bargaining committee of the Union to discuss all matters that arose in negotiations with the union president What Respond- ent feared was the union president getting information first hand while being present during negotiations In view of the testimony , it is apparent that Respond- ent's asserted basis to not negotiate in the presence of committee chairman and President James Mitchell does not present clear and present danger to the negotiating process Perhaps issues concerning confidential information will arise during negotiation However, there has been no showing that the parties could not handle such problems during negotiations and, in any event, Respondent illus- trated that it had no concern with the Union discussing whatever it learned during negotiations with the union president That testimony reveals that Respondent's con- cern with confidentiality is merely a surface reaction without there existing true and substantial danger The mere fear that negotiations will result in compromising confidentiality is insufficient See General Electric Co, 173 NLRB 253, 255 (1968) As to the question of ill will, Respondent admitted that it has nothing personally against either James Mitchell or Raymond Anderson Only their particular positions make their presence in negotiations objectionable Therefore, the record fails to show the existence of ill will that would make bargaining impossible Fitzsimmons Mfg Co, 251 NLRB 375 (1980) I find that Respondent violated Section 8(a)(5) and (1) by refusing to negotiate with a committee that included Union President James Mitchell Missouri Portland Cement Co, 284 NLRB 432 (1987), Colfor Inc, 282 NLRB 1173 (1987), Independent Drug Store Owners of Santa Clara County, 170 NLRB 1699 (1968) Regarding Raymond Anderson , Respondent demon- strated an unwillingness to negotiate with Anderson present as a member of the Union's negotiations commit- tee, regardless of the Union's expression that it would meet during nonworking times if Respondent desired In I When asked what effect inclusion of a competitor on the committee would have, Morey White testified , "I don 't feel like I could bargain in good faith " 2 As shown above, Morey White testified that Respondent historically resisted inclusion on the Union's bargaining committee of employees of competitors because "we feel like that a competitor sitting in , things come out in negotiations that, you know, we don't particularly want our competitors to know about " Indiana & Michigan Electric Co, 229 NLRB 576 (1977), the Board had occasion to consider a similar question The General Counsel alleged that the Respond- ent violated Section 8(a)(5) and (1) of the Act by (1) refusing to meet with the union representatives ouside working hours, and by (2) simultaneously re- fusing to allow members of the bargaining commit- tee leave without pay to travel to and participate in negotiations with respect to units in which they are not employed The Respondent defended its actions principally on the theory that at least one "traveler" and member of the committee , VanAman, was a troubleshooter whose presence could not be spared for the aggregate of 11 days requested to participate in these negotiations The alleged violation was not pinned to one or the other of the Respondent's ac- tions, but resulted from the application of both ac- tions together, which effectively deprived the Union of the assistance of the bargaining representa- tives it desired We find that the Respondent's refus- al to grant members of the Union 's negotiation com- mittee uncompensated leave to permit them to engage in bargaining during working hours, while at the same time refusing the Union 's request to bar- gain during nonworking hours, is an unlawful inter- ference with the Union 's selection of its bargaining representatives We do not suggest that an employer is compelled to yield to a union 's request for negotiations outside normal business hours It is free to insist on bargain- ing during the working day, if it prefers, as the Re- spondent did here If it makes this choice , however, it cannot at the same time refuse to allow unpaid time off to union representatives on the bargaining committee because they are employed in another unit Alternatively, the Employer is free to acqui- esce in the Union's request to bargain during non- working hours in order to reduce the amount of un- compensated leave for travelers and to minimize the effects of the unavailability during their regular working hours of emergency troubleshooters However, the Respondent cannot have it both ways That is, if, as here, the Respondent makes the choice to bargain during the working day, it cannot lawfully refuse to allow union employee representa- tives time off But, if it does refuse to give such em- ployees time off, then it is obligated to make itself available for negotiations at a time-even outside working hours-when the representatives can attend It is the Respondent's attempt here to have it both ways that constitutes the violation of the Act If, as here , an employer is concerned with loss of an employee 's services because of the employee's presence at negotiations , there exist a possibility that the employer may insist on a reasonable alternative However , the em- ployer may not simply refuse to negotiate on the grounds that a valuable employee is included on the ne- gotiating committee Here , the Union attempted to rec- oncile the Respondent's problem with the loss of Ander- MILWHITE CO 1153 son's services as one of its two bulldozer operators, by offering to meet and negotiate during nonwork times As noted above , the Respondent cannot have it both ways It cannot refuse to meet both during work and nonwork times on its assertions that it cannot afford to lose Anderson during work Respondent 's argument that negotiations would inter- fere with production if Anderson is present regardless of whether the negotiations occurred during work or non- work times is unreasonable I find that Respondent also engaged in 8(a)(5) and (1) conduct by refusing to bargain while Anderson is present as a member of the Union's negotiation committee CONCLUSIONS OF LAW 1 Respondent Milwhite Company , Inc is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 United Steelworkers of America , AFL-CIO-CLC, Local Union 170-02 is a labor organization within the meaning of Section 2(5) of the Act 3 By refusing to bargain collectively with United Steelworkers of America , AFL-CIO-CLC, Local Union 170-02 because of the presence at bargaining of James Mitchell and Raymond Anderson , Respondent has en- gaged in conduct violative of Section 8(a)(5) and (1) of the Act 4 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act Mitchell and/or Raymond Anderson on its bargaining committee , as the exclusive collective-bargaining repre- sentative of its employees in the appropriate unit All production and maintenance employees em- ployed by Respondent at its facility in Attapulgus, Georgia excluding all clerical, technical and labora- tory employees , watchmen , guards and supervisors as defined in the Act (b) Post at its Attapulgus , Georgia facility copies of the attached notice marked "Appendix "4 Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by the Respondent's au- thorized representative , shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered , defaced, or covered by any other material (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply 4 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to recommend that Respondent be ordered to cease and desist there- from and to take certain affirmative action designed to effectuate the policies of the Act On these fmdings of fact and conclusions of law and on the entire record , I issue the following recommend- s ORDER The Respondent , Milwhite Company , Inc, Attapulgus, Georgia, its officers, agents, successors , and assigns, shall 1 Cease and desist from (a) On request from the Union continuing to refuse to meet and negotiate a collective-bargaining agreement even though the Union's negotiation committee may in- clude James Mitchell and/or Raymond Anderson (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) On request meet and negotiate with the Union even though the Union may , at its election include James If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings , conclusions, and recommended Order shall , as provided in Sec 102 48 of the Rules , be adopted by the Board and all objections to them shall be deemed waived for all pur- POSM APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, ,loin, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities WE WILL NOT refuse to meet and negotiate in good faith with designated representatives of United Steel- workers of America, AFL-CIO-CLC, Local Union 170- 02 as exclusive bargaining representative of our employ- ees in the following appropriate bargaining unit All production and maintenance employees em- ployed by Respondent at its facility in Attapulgus, Georgia excluding all clerical , technical and labora- 1154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tory employees, watchmen, guards and supervisors WE WILL, on request, meet and negotiate in good faith as defined in the Act . with designated representatives of the Union including, if the union desires, James Mitchell and/or Raymond An- WE WILL NOT in any like or related manner interfere derson. with , restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. MILWHITE COMPANY, INC.