NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Stepan Company and United Electrical, Radio & Machine
Workers of
February 14, 2008
DECISION AND ORDER
By
Members Liebman and Schaumber
On
February 21, 2007, Administrative Law Judge Wallace H. Nations issued the
attached decision. The General Counsel
and Charging Party Union filed exceptions and supporting briefs; the Respondent
filed an answering brief; and the General Counsel filed a reply brief.
The
National Labor Relations Board has considered the decision and the record in
light of the exceptions and briefs and has decided to affirm the judge’s
rulings, findings,[1] and
conclusions[2] and to
adopt the recommended Order.[3]
ORDER
The
recommended Order of the administrative law judge is adopted and the complaint
is dismissed.
Dated,
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Wilma
B. Liebman, |
Member |
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Peter
C. Schaumber, |
Member |
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(Seal) National Labor
Relations Board
Jennifer R. Spector, Esq., for the General Counsel.
Adam C. Witt, Esq. and David L. Christlieb, Esq., of
Joseph Cohen, Esq., of
DECISION
Statement of the Case
Wallace H. Nations,
Administrative Law Judge. This case was tried in
On the entire record, including my observation of the demeanor
of the witnesses, and after considering the briefs filed by the General
Counsel, the
Findings of Fact
i. jurisdiction
The Respondent, a corporation, engages in the manufacture
and sale of specialized chemicals at its facility in
ii. alleged unfair labor practices
As noted above, Respondent operates a manufacturing facility
in
All full-time and regular part-time production, maintenance and laboratory employees, including Operators, Production Assistants, Maintenance Mechanics, E and I techs, Warehouse Employees, Boiler Operators and Lab Technicians employed by Respondent at the Plant; excluding all other employees, management employees, clerical employees, guards and supervisors as defined by the Act.
The initial collective-bargaining agreement between Respondent
and the
1. In any year
prior to 2004-5, did Stepan Chemicals utilize the Hourly Wage Survey Data
collected by the chemical company association, which you previously supplied to
us, to determine the level of wage increases at Fieldsboro (decreases or
freezes) which it provided to employees now represented by our union? If your
answer is affirmative, please provide us with copies of all of those surveys
for each year in which such survey impacted wage actions taken by the Company
from 1994 through the present date.
2. Copies of
any and all additional wage surveys used by Stepan Company in evaluation and
adjusting the wage structure for Fieldsboro employees from 1994 to the present:
3. A listing
of annual wage adjustments (increases, decreases, or freezes) provided to
Fieldsboro employees from 1994 to the present, which includes the following information:
a. The amount
of each such increase or decrease;
b. The
effective date of each such increase or decrease;
c. The basis for calculating the amount
of such in creases or decreases;
d. The
classifications which each increase, decrease or wage freeze affected;
e. Notation of
years in which no increase was given, along with the reason no increase was
given.
The Union sought additional information in this letter, information
that the General Counsel does not deem relevant or necessary to the
A. Evidence Adduced Relating to the Complaint Allegations
1.
Evidence adduced by General Counsel
James Ermi is a field organizer for the International
Union. He works with a number of locals, including Local 155, on contract
administration, grievances, and contract negotiations. He was the chief
negotiator for the
Respondent’s bargaining committee consisted of Charles
Worden, Stacie Santoleri, and Mike Prising throughout the negotiations. Sitting
in for some of the sessions were the plant managers at the time, Damien Burke
and Hector Cuello. At some sessions, Respondent’s Mayberry New
Ermi characterized the Respondent’s November 30 wage
proposal as outrageous, as it called for between a 25- and 30-percent wage cut
for most job classifications. During the day of November 30 and the next day,
December 1, the parties made a number of wage proposals and counterproposals.
There was some movement by both sides. Ermi testified that in justification for
its wage proposal, Respondent told the
Ermi testified that at the end of the day on December 1
the parties were not close on the issue of wages. The Respondent, according to
Ermi, was proposing a slight reduction in some wage classification and/or a
continuation of an ongoing wage freeze. The
The next bargaining session took place on December 7,
2005. The parties discussed wages throughout the day and at the close of the
session Respondent presented the
Following the meeting on December 8, the
Ermi’s affidavit to the Board on the subject to wage surveys being discussed at the January 10 meeting reads:
“Both Worden
and Zoglio said something like we’ve give you what we think is a competitive
wage offer, we’ve gone over the surveys, we need to adjust our wage scales”.
Ermi then said, “You guys have had every opportunity to adjust your wage scales
for umpteen years. Obviously, the company chose to pay the rates that it’s
paying now. The only intervening event we’re aware of was the January 6th
vote for the men to join the union. Now you’ve decided that you were paying
these guys too much and you need to cut it or at least hold them.” “Zoglio said
Fieldsboro had seen a $9 million annual profit and loss before they lost
Clairol [a major account], and it had been a straight line annual decline since
then.” Zoglio continued, “We’re simply not going to pay the premium wages that
we have in the past. We have done some benchmarking, as we routinely do on
wages in the South Jersey and
According to Ermi, the forgoing quotes are all that was said at the meeting about profitability and surveys. Ermi admitted that Zoglio did not say the company had used past wage surveys to make its contract proposal on wages. Ermi clearly believed that Respondent had historically relied on wage surveys when setting wage rates and had held that belief since at least November 30, 2005. His notes of that bargaining session reflect that he stated during that meeting: “I’m sure the company looked at wage surveys when you set up the current wage structure many years ago.” On redirect he seems to contradict himself by testifying at that point in his examination that he did not really believe that Respondent had used wage surveys in determining wages prior to 2005.
Also on January 10, the Union filed a ULP charge alleging
the Respondent failed to implement the 3-1/2-percent across-the-board wage
increase promised during the Union’s organizing campaign in retaliation for
other charges filed by the Union and in retaliation for the employees’ voting
in the
On January 10, the
A couple of days later, the
Following the January meeting on January 10, the
According to Ermi, Worden listened to Ermi and then asked if he could call him back as he was nursing a sore throat and needed to take something if he wanted to continue talking. According to Ermi, he again offered to return to work and Worden responded, “Well, you know what, we have a company to run, we’re tired of all the bullshit games, the guys are locked out.” Ermi testified that he inquired about what “games” Worden was referencing. Worden replied, “Well, all this stuff with the sick-out, the Board charges, and you know, everything, it’s just everything. We’ve got a company to run. We have customers we have to satisfy.”2 Ermi testified that he then said, “Charlie, I’m just asking you for more information. There are other Board charges already filed that are being investigated. We just asked you for information. Have you responded to that yet?” Worden responded that he believed that something had been mailed. Ermi stated the he had not received anything. Worden said that the response went out on Friday and Ermi noted that he had not been in his office all day and it might be there. He asked for time to review the response and Worden again told him that the employees were locked out.
The following day, Ermi went to his office and read Respondent’s
response to the information request. Ermi characterized the response as a
refusal to supply the requested information. Ermi testified that at the time
the lockout began the
Respondent’s reply to the information request reads:
I am in
receipt of your letter of January 17, 2006. In that letter, you request
voluminous information regarding wage increases or adjustments, and the reasons
for those increases and adjustments. Of course, you have already filed a Charge
with the NLRB regarding inter alia, our
proposals on wages, the reasons for those proposals, and an alleged failure to
provide a scheduled raise in wages. You knew of Stepan’s use of wage surveys,
as well as our profitability concerns, no later than November of 2005. However,
it was not until you had filed NLRB charges on these issues that you requested
any further information. In fact, your information requests largely mirror the
requests for information we’ve received from the Region in regard to these
charges.
Thus, it is
clear that your “information request” is nothing more than an attempt to
conduct discovery regarding your pending NLRB charges. As such, under established
NLRB precedent, we are under no duty to provide you any such information.
Please feel
free to contact me with any questions or concerns. Also, we are still waiting
for your reply from our last meeting of January 10, 2006.
Following their telephone conversation of January 23, Worden wrote to Ermi the following:
I am writing
to confirm our conversation from the night of January 23rd and in
response to your letter of today’s date. During our conversations, you
indicated to me that the employees were interested in ending the strike that
the
The Company
put a good faith, Best and Final offer on the table back in December and, when
the employees voted it down, we received no additional proposals from the
Since the
ratification vote, we have seen nothing but game-playing from the
While you
misinterpreted my explanation, accusing the Company of locking-out employees in
retaliation for the strike, I assured you that this was not the case. The Union’s
strike was simply the last straw in the
Finally, in
your letter of today’s date, you claim that the
In fact the
Following this letter, there was no communication between the parties until Ermi and Worden spoke at the end of February or the first of March. The two men met and Worden gave Ermi annual changes to the corporatewide employee health plan. Worden explained that the changes were about to go into effect and he did not want the Fieldsboro employees to be taken by surprise. Ermi remembered there was a passing comment made about the outstanding information request.
On March 22 or 23, Ermi received another response to the information request. In the letter accompanying the information provided, Worden wrote:
I am writing
with regard to your Information request of January 17, 2006. As you know,
Stephan declined to provide you with the information requested therein, to the
extent that you did not already have it, on the grounds that it was clearly
intended as a discovery device in support of certain of the unfair
labor practice charges that the UE had previously filed against the Company. We
have since been advised by Region 4 of the NLRB that the specific charges in
question will be dismissed. For that reason, I am enclosing herewith the
information you have requested.
In producing
this information, you should be specifically aware that Stepan is in no way
waiving any right or ability to contest the merit of the UE’s charge concerning
this issue, or any other issue, before the NLRB. We continue to believe that
the UE’s charges are without merit. Further, the Company is in no way conceding
that this information is at all relevant or necessary for the purposes of collective
bargaining. Quite the contrary, for example, you indicate in your January 17th
letter that you seek wage survey information from prior years to evaluate the
“impact” of wage surveys on the Company’s “current” wage proposal. As you are
aware from our discussions at the table, however, we did not refer to any wage
surveys other than those discussed at the table to develop the Company’s current
wage proposals.” (The letter then goes on to answer the specific questions posed
by the January 17 letter).
The parties next met for bargaining on March 24. On the evening before this meeting, Ermi, Worden, and Union Representative Gene Elk met for a discussion. According to Ermi, Worden expressed his angst about the situation that existed and said that Respondent had the ability to rework some of the wage offer. Ermi testified that Worden said he could take a nickel or so out of the second and third year proposals and put that money into the first year. The men also talked about putting profit sharing back on the table. Worden told Elk and Ermi that profit sharing might get back into the mix and he was giving them a “heads up” before they formally met to bargain. When they did meet on March 24, profit sharing was put back on the table, but no real changes were made to the wage proposal. At this stage, there were also outstanding issues relating to short term disability and the employees contribution to health care. Both were considered by Ermi to be important issues.
There was no discussion of the information that Respondent had provided in response to the January 17 letter, other than the union representatives noting that it had the information with them.
Subsequent to this meeting, as part of discovery for a
The final agreement on wages was close to what had been proposed by Respondent in January, but with what was called a schedule premium that amounted to almost a 3-percent increase for all but five or six people in the bargaining unit. There was also a $1000-signing bonus paid to the employees upon ratification. The five men in the maintenance department who were not getting an hourly increase received a $1250-signing bonus.
2. Evidence
adduced by Respondent
There are no serious differences in the evidence put in the record by the General Counsel and Respondent. There are some minor variations, but they do not affect the outcome of this proceeding. The General Counsel disputes some testimony by Respondent’s chief witness to the effect that he noted in either the November or December 2005 bargaining sessions that Respondent had historically used wage surveys as part of the process of setting Fieldsboro wages. Whether he noted this or not makes no difference in the decision-making process.
Charles Worden is human resources manager for Respondent’s
Millsdale plant, located in
Before negotiations for the first contract commenced, the
With respect to employee healthcare contributions, Worden
testified that there had been many proposals on this issue. As of December 7,
2005, the Company was proposing as the maximum yearly employee contribution 22
percent for the duration of the contract, and the
Worden testified that discussions of the wage issue began
on November 22, 2005, and that the Respondent’s use of wage surveys was
discussed on that date. On that day, Respondent offered the Ocean Spray wage
survey that covered the wages and benefits of some 19 companies in the area of
Fieldsboro. The Respondent also offered information on some four or five other
area companies that had given Respondent information about their wages and
benefits. Worden testified that this information was supplied to the Union as
the Company felt the Union’s wage proposals were out of line and high when compared
with wages and benefits being paid by companies in southern
According to Worden, at the December 7, 2005 meeting, the parties talked about wage surveys the Company had used in the past and he specifically mentioned information obtained from the New Jersey Chemical Industry Council. Worden believed that he mentioned that the Company had used such surveys in the past to evaluate wage increases at Fieldsboro. Worden testified that employee bargaining committee member McCullough responded that it did not make any difference what the wage surveys said.
At one of the meetings in November and December 2005,
employee bargaining committee member Jeff Thomas presented the Company with a
cover page from a website showing wage rates for 27 companies, only three of
which were considered peers with Stepan.
Worden testified that Respondent went to the website and found that
there were more than three companies with operations similar to Stepan’s. Respondent
then asked the
Respondent introduced all proposals made by the parties
with respect to wages. The Company’s first wage proposal was given to the
The Respondent made yet another counter and the
On December 7, the Company made what it termed its last
and final offer on wages. This offer proposed wage rates ranging from a low of
$23.30 to a high of $27 with increases in the last 2 years of 65 cents each
year. The
Lab Tech 75 cents
A Operator-Continuous 86 cents
B Operator 87 cents
Warehouse $2.85
Production Assistant 77 cents
E & I Tech 83 cents
Mechanic A 83 cents
Mechanic B 87 cents
Boiler Operator Blue 87 cents
Boiler Operator Black 87 cents
One employee in the warehouse was to have his current wage red-circled and be unchanged.
At no point in the bargaining about wages did the
After the last offer was voted down, the parties met on
January 10, 2006. Worden remembers Zoglio saying that Respondent had used wage
surveys in the past, had benchmarked with wage surveys in the past and used
them routinely in figuring wage increases given to employees. According to
Worden, this was no different from what he had discussed with the
At the January 10 meeting, the Company made no proposals
with respect to wages, and the
When Worden received the Union’s information request on
January 17, 2006, he was upset as he felt it was very similar to the
information being sought by the Board in its investigation of the
Worden, in an explanation for the Respondent’s lockout,
noted that the
Worden testified that the Company needed to be able to service
its customer and run its plant without interruption. It brought in employees
from all over the
I am writing
this letter to confirm our telephone conversation late last night and to
reiterate that our union and members repeatedly and unconditionally offered to
return to work last night. During my conversation with Plant Manager Hector
Cuello and during my second telephone conversation with you, Stepan responded
by stating that until further notice our bargaining unit members are not
permitted to return to work.
In the event
that you disagree with the above, please contact me as soon as possible so that
the
Please be
further advised that I am in receipt of your letter [of] January 20, 2006, in
which you claim that Stepan is “under no duty [to] provide . . . information”
which I requested on January 17. Again, I must reiterate that the union
requires the information requested in that letter to meaningfully respond in
bargaining to the proposals and statements made by your representatives on
January 10, 2006 that its wage offers were based on company profitability and
an area wage survey. I would therefore request that you reconsider your
position and provide the union with such information as quickly as possible so
that the union may intelligently respond to your proposals.
Ermi never provided any other reason for needing the information requested on January 17, 2006.
On February 16, 2006, Worden sent a letter to all
Fieldsboro employees. The first two paragraphs of the letter explain COBRA benefits
for the locked out employees. The remainder of the letter sets out the
Company’s reasons for the lockout and expresses hope that it would end soon
with the signing of a contract. Prior to sending the letter, Worden met with
Ermi showing him the letter and asking if there was any hope for an additional
bargaining session. Ermi said that the
Worden next talked to Ermi on March 14. Worden was at the Fieldsboro plant and called Ermi to see if there was any sense in trying to meet and attempt to arrive at a contract. Ermi’s response was similar to his response on February 16, and no meeting was scheduled.
Ermi called Worden on March 17 and requested a meeting and one was scheduled for March 24, 2006. On March 20 or 21, Worden called Ermi and asked if they could meet on the evening of March 23 to discuss some ideas that Worden had to get the parties to a contract. During the calls of March 14 and 17, Ermi mentioned nothing about his outstanding information request.
On March 23, 2006, Worden met with Ermi and Elk. They
talked about the outstanding issues and Worden indicated that he might move
some things around in Respondent’s proposal to make it more appealing to the
The
At no time during the meetings of March 23 or 24 did the matter of the information request surface.
On April 10, 2006, Worden sent a letter to the bargaining
unit employees pointing out the value of the profit-sharing feature which
Respondent had added to its proposal and urging the employees to prod the
Worden next contacted Ermi on April 26 or 27 to set up another meeting. They agreed to meet on May 1. At the meeting were Worden, Zoglio, Ermi, and three employee negotiating committee members. Zoglio told those present that they needed to get the contract settled. He asked the employee negotiators to write down on note cards the top three or four items standing in the way of finalizing the contract and that he would address them, noting that the parties would stay until a contract was reached. The employee committee came up with five items: short-term disability, wages in the first year, the attendance bonus, shift differential, and one other that Worden could not recall. The Company then made a proposal addressing these issues.
It increased the supplement for short-term disability from $150 per week to $200 per week. It added profit sharing, beginning January 1, 2007, to the final offer. It put back in the work performance bonus at 4 hours’ pay. The wages in the first year remained the same, but Respondent agreed to a 2.5-percent increase in year two and another 2.5-percent increase in year three. It raised the schedule premium from 50 to 75 cents. It also added a one-time $1000-payment in lieu of profit sharing for 2006. This constituted the changes to the last offer. As Ermi noted, the $1000-payment was raised to $1250 for certain employees following the meeting. This final offer was ratified by the employees.
At no time did the Company ever condition the end of the lockout on employees resigning their union membership, or on the withdrawal of the parties’ tentative agreement on union security or dues checkoff. There was never a threat by the Company that employees could not return to work when the lockout ended. In fact, all 38 unit employees did return to work.
Michael Prising, Respondent’s production superintendent at
Fieldsboro, testified about the
During the practice picketing, a couple of tank trucks refused to cross the line and had to be rescheduled.
With respect to the 1-day strike, Prising received a call
from the on-call supervisor at the plant about 11 p.m. He had received a call
from the Union’s chief steward saying the
Robert Mangold is vice president of Stepan’s North American
plant operations. He gave a presentation during negotiations on October 18,
2005. At this presentation, he showed the sales and financial data for all the
Company’s North American operations, highlighting Fieldsboro. It reflects a
steady decline in the plant’s profitability and reflects that Fieldsboro had
the worse performance of any of Stepan’s plants from the standpoint of sales
and profitability. After the presentation, and up to January 17, 2006, the
Referencing the exhibit reflecting the cost of the lockout, Mangold testified that the expenditure was worth it because it needed to continue to meet its customer’s needs. Any loss of customers could be very expensive to the Company. The Company also went into lockout mode because of safety concerns. Starting and stopping a chemical plant is very dangerous and the Company could not rely on an intermittent work force. He testified that if an accident occurred the costs associated with it could run into the millions. These reasons caused the Company to institute the lockout until a contract and labor peace were achieved.
Anthony Zoglio is Respondent’s vice president for its supply
chain. With respect to the January 10 bargaining session he attended, Zoglio
testified that he mentioned “benchmarking” as something done at all contract
negotiations conducted by Respondent. He also noted the business lost as a result
of Fieldsboro losing the Clairol and Unilever accounts. This loss caused the
Respondent’s profit at Fieldsboro to drop from $9 to $1 million annually. He
testified that the
Zoglio was involved in the decision to lock out the Fieldsboro employees. He mentioned as reasons for the lockout the same reasons articulated by the other management witnesses. On March 6, he caused a letter to be sent to all Fieldsboro employees. This letter reads:
The UE has
made a lot of baseless accusations. In NLRB charges and otherwise, about
Stepan’s conduct during the course of negotiations. They claim that we locked
employees out as ‘punishment’ for organizing a union; that the Company seeks to
impose a ‘wage freeze;’ and that Stepan refused to bargain in good faith for a
contract. I want you to know that the Company has been careful to ensure that
all of its actions throughout this process have complied with the law. As such,
we are comfortable that the NLRB will fully vindicate Stepan.
As Charlie
Worden explained to you in his last letter, the employees have been locked out
because we need to be able to provide uninterrupted service to our customers
without the threat of intermittent work stoppages (e.g. the sickout and the 24
hour strike), and because we want agreement on our proposal. The lockout has
nothing to do with your having organized a union. Think about that. Between
April and December of 2005, Stepan went to the time and expense of meeting with
the UE bargaining committee on 30 separate occasions in the hope of agreeing to
a contract. Why would we have done this if we wanted to ‘punish’ the employees
for organizing, or if we didn’t want a contract with the
We do want a contract. To that end, in
those 30 bargaining sessions, Stepan and the UE were able to reach tentative
agreement on 26 separate Articles for a new contract. Those agreements included
an increase in your holiday pay; increase in your shoe allowance; provisions
for uniforms, lab coats, and jackets; increases in premium and overtime pay;
increase in your meal allowance; extension of bereavement leave; increase from
zero to three personal days with pay; dues check-off directly to the Union; a union
security clause; layoff and recall by seniority; just cause discipline with
binding arbitration; and severance in the event of plant closure.
Stepan has not
proposed a “wage freeze.” On wages, the Company proposed increases of between
4.8% and 5.5% over a three year contract. On health insurance, the Company
proposed to cap increases to
employee’s co-payments (to restrict
the Company’s ability to increase) at 22%. On Short Term Disability, the
Company proposed the benefits provided by the New Jersey Temporary Disability
Benefits Law, plus $150 per week supplement up to 26 weeks.
We think that
these proposals represent a contract worth voting for. Otherwise Stepan would
not have proposed it. In fact, with the wage proposal we have on the table,
Fieldsboro employees would remain in the top 25% for wages paid to chemical
workers in the Fieldsboro area, even under the wage surveys reference by the
Zoglio was present at the annual Stepan shareholders’ meeting
in April. He testified that several union employees asked questions of
management. These questions raised the alleged wage freeze and the cost of the
lockout. After the meeting, Zoglio met with these employees. He was struck by
their level of concern and determined to have a meeting with the
B. Findings and Conclusions
The result in this case turns on whether the
The
Thus, to investigate the Union’s allegations of discrimination and retaliation, it would make sense that the Union, and the Region for that matter, would look to Stepan’s wage increases, and the reasons for those increases, prior to 2005, to ascertain whether they differed in any way from the Company’s post-“triggering event” conduct so as to infer discriminatory or retaliatory motive. The Region sought just that type of evidence in its information request of January 11, 2006. The letter from the Region asked for, inter alia: “Employee wage increases (including effective dates) for the years 2000 through 2005; and: ‘Any documents related to the Employer’s decision to give or not give a wage increase.”’
In the
Both the timing of the
As the Union’s motive in requesting the information had nothing to do with current negotiations but was intended as a means of discovery to bolster its alleged 8(a)(3) violation charge against Respondent, I find that Respondent was lawfully allowed to refuse to comply with the information request. In Union-Tribune Publishing Co., 307 NLRB 25 (1992), the union filed a charge against the employer, alleging that the employer had discriminated against an employee in violation of Section 8(a)(3) by suspending and then terminating him. The employee asked for information regarding the suspension and termination, and the employer refused to provide it, citing the fact that there were unfair labor practice charges on the issue.
In upholding the employer’s refusal to provide the information, the Board explained that:
[T]he rule is that an employer faced with a pending 8(a)(3) charge may legitimately decline to provide to furnish information that may relate to the charge prior to the hearing. It follows that an employer who declines to provide information on that basis, as the Respondent did, has a valid motive for doing so.
Aside from the Respondent’s refusal to comply with the January 17 information request until the Region acted on the unfair labor practice charges, the Region does not contend that that lockout was unlawful. The Respondent has established that it was bargaining in good faith and had substantial, non-discriminatory, reasons for the lockout. As I have found that the Respondent lawfully refused to comply with the information request, there was nothing unlawful about the lockout. I recommend that the complaint in this case be dismissed.
Conclusions of Law
1. The Respondent, Stepan Company, is an employer within the meaning of Section 2(2), (6), and (7) of the Act.
2. United Electrical, Radio and Machine Workers of America (UE), Machine Tool and Die Local 155 is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent did not commit the unfair labor practices alleged in the complaint.
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended3
ORDER
The complaint is dismissed.
Dated,
[1] The General Counsel and Charging Party
have implicitly excepted to some of the judge’s credibility findings. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully
examined the record and find no basis for reversing the findings.
[2] In adopting the judge’s finding that the
Respondent did not violate Sec. 8(a)(5) by refusing to furnish the Union with
information it requested in its letter of January 17, 2006, we rely on the
judge’s finding, which turned in significant part on credibility resolutions,
that the “requested information was sought solely to support the [Union’s]
unfair labor practice charges and for no other reason.” See, e.g., Saginaw Control & Engineering, Inc., 339 NLRB 541, 543–544
(2003) (finding that an employer’s refusal to provide potentially relevant
information was not unlawful where the evidence showed that the union was
merely seeking to support a previously filed unfair labor practice
charge). This finding is buttressed by
the timing of the Union’s information request, made just days after the Union
had filed its charges and the Board’s Regional Office had asked the Respondent
to provide information related to the charges, and by the fact that the
information sought by the Union largely paralleled that requested by the
Region. Because the complaint allegation
was properly dismissed on this basis, we find it unnecessary to rely on the
judge’s finding, or supporting analysis, that the requested information was not
relevant to the
In adopting the
dismissal of the 8(a)(5) allegation, we also do not rely on the judge’s
statements that: (1) under Union-Tribune
Publishing Co., 307 NLRB 25, 26 fn. 6 (1992), an employer need not produce
requested information that it “reasonably believes” may be related to a pending
unfair labor practice charge against the employer; and (2) “that there is no
reason the Union could not have bargained over wages in the absence of the
requested information.”
[3] Effective midnight December 28, 2007, Members
Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in
anticipation of the expiration of the terms of Members Kirsanow and Walsh on
December 31, 2007. Pursuant to this
delegation, Members Liebman and Schaumber constitute a quorum of the
three-member group. As a quorum, they
have the authority to issue decisions and orders in unfair labor practice and
representation cases. See Sec. 3(b) of
the Act.
1 The
2 On cross-examination, Ermi admitted that
Worden had not mentioned the Board charges in this conversation, and further,
that he Ermi, had in fact, asserted to Worden that the Board charges were the
reason for the lockout. Worden denied this assertion in the conversation.
3 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 purposes.