Monsanto Co.

National Labor Relations Board - Board Decisions

Feb 29, 1984

268 N.L.R.B. 1381 (N.L.R.B. 1984)

MONSANTO CO.
Monsanto Company and Local Union 12610, United
Steelworkers of America, AFL-CIO-CLC. Case
9-CA-19163-2
29 February 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 20 July 1983 Administrative Law Judge
James L. Rose 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,I 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, Monsanto
Company, Nitro, West Virginia, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order.
I In adopting the judge's finding that the Respondent violated Sec.
8(a)(5) of the Act by refusing to furnish the Union with home addresses
of seven bargaining unit employeees, Member Hunter notes that the Re-
spondent did not establish or allege that employee addresses are treated
as confidential by it or that the employees' interests in the privacy of
their home addresses outweigh the Union's need for such information.
See generally Minnesota Mining d Mfg. Co., 261 NLRB 27 (1982).
Member Hunter places no reliance on the statements in section 11,B,
of the judge's decision regarding the pending tort action against the Re-
spondent and the Union's responsibility to advise employees as to their
employment-related rights under common law and Federal statute, in
veiw of the judge's finding that the Union needed the employees' ad-
dresses to communicate with them on other matters.
Member Dennis agrees with the judge that the Union had the right to
advise employees of the toxic substances lawsuit, but she does not find it
unnecessary to pass on the judge's apparent conclusion that the Union
had an "obligation" or "responsibility" to do so.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge: This
matter was tried before me on May 2, 1983,1 at Charles-
ton, West Virginia, upon the General Counsel's com-
plaint which alleges that since on or about January 21
the Respondent has refused to furnish the Charging
Party certain information and thus violated Section
8(a)(5) of the National Labor Relations Act, as amended,
29 U.S.C. § 151, et seq.
All dates are in 1983 unless otherwise indicated.
The Respondent generally denies that it has committed
any unfair labor practices and urged eight affirmative de-
fenses. 2
On the record as a whole, including my observation of
the witnesses, briefs, and arguments of counsel, I hereby
issue the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. JURISDICTION
Monsanto Company is a Delaware corporation en-
gaged in the manufacture of industrial chemicals and
rubber additives at a facility in Nitro, West Virginia. In
the course of this business, the Respondent annually
ships to points outside the State of Virginia goods, prod-
ucts, and materials valued in excess of $50,000. The Re-
spondent admits, and I find, that it is an employer en-
gaged in interstate commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local Union 12610, United Steelworkers of America,
AFL-CIO-CLC (the Union), is admitted to be, and I
find is, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
For years, the Union has represented employees of the
Respondent in the following appropriate bargaining unit
under Section 9(b) of the Act:
All hourly paid employees employed at the Re-
spondent's Nitro, West Virginia plant, but excluding
all office clerical employees, professional employ-
ees, salaried employees, all the guards and supervi-
sors as defined in the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
In connection with its representation of employees, the
Union has negotiated successive collective-bargaining
agreements with the Respondent, the most recent of
which is effective from October 1, 1981, through Sep-
tember 30, 1984. This contract covers wages, hours, and
other terms and conditions of employment for the ap-
proximately 460 employees in the above-described bar-
gaining unit.
Some time in mid-January, Gregory Witt, the Union's
grievance committeeperson and union steward, was
asked by International representative Larry Ratliffe to
get from the Company the addresses of seven current
employees and four retirees. (Apparently Ratliffe had at-
tempted, unsuccessfully, to obtain this information him-
self.) Thus on January 21, Witt saw Personnel Supervisor
Roger Arthur and told him that he had a list of employ-
ees and retirees whose addresses the Union wanted.
Arthur responded that he would have to check before
2 In its answer, the Respondent also contends that it was not obligated
to furnish information relating to retired former employees. The General
Counsel did not proceed on those allegations in the complaint which re-
lated to retired former employees. Accordingly, the Respondent's 9th and
i0th affirmative defenses were withdrawn.
268 NLRB No. 213
1381
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
giving Witt that information. That afternoon, Arthur left
the following memo for Witt: "I cannot give you any ad-
dresses of active or inactive employees without the writ-
ten consent of the person." To date, the Respondent has
refused to furnish the Union the addresses of the seven
active employees.
B. The Analysis and Concluding Findings
The Respondent concedes that the names and address-
es of the bargaining unit employees is information to
which the Union is presumptively entitled. Georgetown
Holiday Inn, 235 NLRB 485, 486 (1978). The Respondent
argues, however, that it has met its burden of rebutting
the Union's presumed entitlement to the information.
Eight grounds are advanced, none of which, I conclude,
has merit.
First, the Respondent contends that the Union does
not need the addresses of these employees in the proper
performance of its function as a bargaining representa-
tive. However, as noted, the names and addresses of unit
employees is something to which the Union is presump-
tively entitled. To ensure that it can reach all unit em-
ployees to pass on a wide range of information, addresses
are necessarily important. Indeed, this is apparently rec-
ognized by the Respondent, for it routinely furnishes the
Union employees' addresses.
The Respondent also contends that the addresses of
employees were not material to the administration of the
collective-bargaining agreement at the time requested,
nor were there any grievances involving these individ-
uals. However, the Union need not demonstrate that it
has a particular item of administration of the contract in
mind or "that the information sought is certainly rele-
vant or clearly dispositive of basic negotiating or arbitra-
tion issues between the parties. The fact that the informa-
tion is of probable or potential relevance is sufficient to
give rise to an obligation on the part of the employer to
provide it." Westinghouse Electric Corp., 239 NLRB 106,
107 (1978). I conclude that the addresses of employees is
information to which the Union is generally entitled not-
withstanding there is no pending grievance involving
them.
The Respondent asserts that the Union sought this in-
formation for purposes of harassment but did not point
out how seeking the addresses of seven employees was
so burdensome as to amount to harassment. Nor was it
shown that the manner in which the Union undertook to
obtain this information was harassing in nature. I simply
do not find that there is any factual basis to conclude
that the Union sought the information for purposes of
harassment.
Similarly, the Respondent contends that the Union re-
quested the information in bad faith. But again, the Re-
spondent brought forth no facts upon which a finding of
bad faith could be made. Particularly this is so where the
bargaining representative is presumptively entitled to the
information requested.
The Respondent contends that it did not violated the
Act by refusing to furnish these addresses because in fact
the Union has this information. In support of this conten-
tion, the Respondent' notes that as a matter of routine,
when employees change their addresses, the Respondent
has them make out a change of address card. This is then
submitted to payroll and other departments along with a
copy to the Union so that the Union can change its ad-
dressograph machine (which the Respondent furnished it
some years ago).
While in the normal course of events it appears that
the Union does in fact get from the Respondent the ad-
dresses of employees, presumptively the Union did not
have the addresses of the seven employees whose ad-
dresses were requested here. Indeed, Arthur testified that
he assumed that Witt would not have made the request
on January 21 if he had had those addresses. The Re-
spondent's contention in this regard is based only on its
assertion that the Union must have had the addresses, be-
cause it commonly furnishes addresses. Since there is no
evidence that the Union had this information, and denied
it did, I must conclude that it did not.
In a like manner, the Respondent contends that the
Union could get the information from other sources and
therefore the Respondent did not breach its bargaining
obligations by refusing to furnish it. There is no evidence
to support this contention, and I note that the plant is in
rural West Virginia, thus making it difficult, if not impos-
sible, to obtain the addresses through telephone books or
like means, particularly when one considers the size of
the unit. Thus this defense is not meritorious. Ace Ma-
chine Co., 249 NLRB 623 (1980).
In its principal affirmative defense, the Respondent
maintains "the Union is acting as an agent for attorneys
for the purpose of soliciting plaintiffs for a law suit
against the Company, in violation of West Virginia Code
Sec. 30-2-16." It thus argues that it had no duty to fur-
nish the addresses requested.
The Union's then president, Paul Shaffer, did post no-
tices on the company bulletin board and sent letters to
employees to the effect that many employees of the Re-
spondent had joined in a lawsuit in the Federal District
Court of West Virginia alleging that exposure to certain
toxic chemicals had affected their health.
The essence of a letter and notices dated November
15, 1982, was to the effect that the law firm of Calwell,
McCormick & Peyton was representing certain employ-
ees in a suit; that Shaffer had been advised by one of
those attorneys that the statute of limitations on the
cause of action would run in March 1983; thus, employ-
ees were beging advised that they had to become in-
volved in the suit against the Respondent by then or any
claims they might have would be barred.
While Shaffer did point out that the law firm of Cald-
well, McCormick & Peyton was the only one to his
knowledge representing employees in a suit against the
Company, he did not indicate to members that they
should or needed to retain that law firm in order to
obtain benefits. Nor is there any other evidence that
Shaffer was acting as an "agent" for the law firm in so-
liciting employment of that firm. There are insufficient
facts to establish that the Union violated the West Vir-
ginia code prohibiting certain acts by attorneys and their
"agents."
I believe that the letters and bulletin from Shaffer to
the membership were a reasonable exercise of his obliga-
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MONSANTO CO.
tions as an officer of the employees' bargaining repre-
sentative to advise members of their rights in connection
with an action against the Respondent arising out of the
employment relationship. It may well be that the Re-
spondent does not like to be sued by employees and
would prefer to keep the number of suits to a minimum.
However, where employees have rights under Federal
statute or common law relating to their employment situ-
ation, it certainly is within the general responsibility of
their bargaining representative to advise them concern-
ing those rights.
In sum, to the extent that the Respondent argues that
the Union is not entitled to the addresses of employees
because it was acting as an agent of a law firm in viola-
tion of West Virginia statutes, I conclude this allegation
has not been proven factually, even if such would sup-
port the Respondent's refusal to give otherwise required
information. To the extent that the Respondent argues
that the Union might use the information requested for
some purpose outside its scope as the collective-bargain-
ing representative, I conclude that there is no basis for
such a finding. Even if in fact the Union intended to use
the addresses it sought from the Respondent to advise
employees of their rights and other matters relating to
the lawsuit, such is not outside its scope as responsibility
of the collective-bargaining representative. Thus, I con-
clude that even if the Union intended to use the informa-
tion as the Respondent feared it might, it could do so
and the Respondent was not privileged to withhold the
information on that basis.
If information is relevant to collective bargaining, it
loses neither relevance nor its availability merely
because a union additionally might or intends to use
it to attempt to enforce statutory and contractual
rights before an arbitrator, the Board or a court.
The fact that other pending litigation exists does
not offer an employer a defense to providing infor-
mation. [Westinghouse Electric Corp., supra at 110-
111.]
Finally, there is undenied and generally plausible testi-
mony that the Union needed these addresses in order to
communicate with the membership concerning a wide
range of matters and events.
Thus even if contacting these individuals about the
law suit is considered outside the Union's scope of re-
sponsibility, still the Respondent may not withhold the
information.
[I]t is well established that where a union's request
for information is for a proper and legitimate pur-
pose it cannot make any difference that there may
also be other reasons for the request or that the data
may be put to other uses. [Associated General Con-
tractors of California, 242 NLRB 891, 894 (1979).]
On balance, therefore, I conclude that the Respondent
has not demonstrated any reasonable basis to deny to the
Union the addresses of the seven active employees it
sought on January 21. Accordingly, I conclude that by
refusing to furnish these addresses the Respondent violat-
ed Section 8(a)(5) of the Act. I will recommend that it
cease and desist from engaging in such activity, and fur-
nish those addresses to the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of the Respondent found
above, occurring in connection with its business, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow thereof within the meaning of
Section 2(6) and (7) of the Act.
V. THE REMEDY
Having concluded that the Respondent violated Sec-
tion 8(a)(5) by refusing to furnish the addresses of cur-
rent employees, I shall order that it cease and desist
therefrom and forthwith furnish the addresses of the fol-
lowing employees to the Union: John M. Arthur, Shirley
R. Lett, Cecil E. Burford, Doyle R. Lanham, Carroll E.
Withrow, Charles E. Buck, and Robert L. Hager.
On these findings of fact and conclusions of law and
on the entire record in this matter, I issue the following
recommended
ORDER3
The Respondent, Monsanto Company, Nitro, West
Virginia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing, on request, to furnish to Local 12610,
United Steelworkers of America, AFL-CIO-CLC, the
addresses of employees in the bargaining unit described
above.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action.
(a) Furnish to Local 12610, United Steelworkers of
America, AFL-CIO-CLC, the addresses of the employ-
ees named in the remedy section above.
(b) Post at its place of business copies of the attached
notice marked "Appendix." 4 Copies of the notice on
forms provided by the Regional Director for Region 9,
after being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that said notices
are not altered, defaced, or covered by any other materi-
al.
s If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
4 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
1383
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(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.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
of active employees in the appropriate collective-bargain-
ing unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL furnish the addresses of all bargaining unit
employees requested by the Union.
MONSANTO COMPANY
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to furnish Local 12610, United
Steelworkers of America, AFL-CIO-CLC, the addresses
1384