Caterpillar, Inc.

National Labor Relations Board - Board Decisions

Oct 30, 2014

361 N.L.R.B. 846 (N.L.R.B. 2014)

846 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Caterpillar Inc. and United Steel, Paper and Forestry,
Rubber, Manufacturing, Energy, Allied Indus-
trial and Service Workers International Union,
AFL–CIO/CLC. Case 30–CA–064314
October 30, 2014
DECISION AND ORDER
BY MEMBERS MISCIMARRA, JOHNSON, AND SCHIFFER
On April 23, 2013, the Board issued a Decision and
Order in this proceeding, which is reported at 359 NLRB
790 (2013). Thereafter, the Respondent filed a petition
for review in the United States Court of Appeals for the
District of Columbia Circuit.
At the time of the Decision and Order, the composition
of the Board included two persons whose appointments
to the Board had been challenged as constitutionally in-
firm. On June 26, 2014, the United States Supreme
Court issued its decision in NLRB v. Noel Canning, 134
S.Ct. 2550 (2014). Thereafter, the Board issued an order
setting aside the Decision and Order, and retained this
case on its docket to take further action as appropriate.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
In view of the decision of the Supreme Court in NLRB
v. Noel Canning, supra, we have considered de novo the
judge’s decision and the record in light of the exceptions
and briefs. We have also considered the now-vacated
Decision and Order, and we agree with the rationale set
forth therein, as modified.2 Accordingly, we affirm the
1 Accordingly, the Respondent’s pending motion for reconsideration
of the prior Decision and Order is mooted.
2 In finding that the Respondent violated Sec. 8(a)(5) and (1) by re-
fusing access to a nonemployee union representative to investigate after
a fatal accident, we find no need to rely on the Respondent’s lax ap-
proach to the admission of documents at the hearing, evidence as to
predecessor employer Bucyrus’ history of allowing visitors access to
the plant, or Regional Manager Rod Bolhous’ “concession” that the risk
of disclosing confidential information by allowing access has not
changed since Caterpillar’s acquisition. We find it sufficient that the
record shows that Caterpillar itself frequently gives tours to customers,
dealers, and technical groups, and has also given tours to students.
Tour groups go through during work hours while work is in progress,
and Bolhous testified that it would be a “normal part of the visit” for
customers to tour the area where the accident occurred. There is no
evidence that the Respondent ever required any of these visitors to sign
nondisclosure agreements. In these circumstances, we find that the
Respondent has failed to meet its burden of establishing a confidentiali-
ty interest that would outweigh the Union’s right to conduct a reasona-
bly limited health and safety inspection.
Our colleague concurs in finding the violation, but dissents from
modifying the judge’s remedial Order. In essence, he disagrees with
the conclusion, incorporated here, that the “Respondent failed to
demonstrate a confidentiality interest that would warrant conditioning
access upon execution of a confidentiality agreement.” 359 NLRB 790,
790. C.C.E., Inc., 318 NLRB 977 (1995), cited by our colleague, is
distinguishable. There, the Board, addressing an asserted confidentiali-
judge’s rulings, findings, and conclusions and adopt the
judge’s recommended Order, as also modified here, to
the extent and for the reasons stated in the Decision and
Order reported at 359 NLRB No. 97, which is incorpo-
rated herein by reference, as modified.3

MEMBER MISCIMARRA, dissenting in part.
I would affirm the judge’s rulings, findings, and con-
clusions in this case, which involves the Respondent’s
failure to grant access to a nonemployee union repre-
sentative for purposes of conducting a health and safety
inspection after a fatal accident. I believe the judge
properly applied the Board’s decision in Holyoke Water
Power Co., 273 NLRB 1369 (1985), enfd. 778 F.2d 49
(1st Cir. 1985), and the record provides substantial sup-
port for finding that the Union’s representational interest
in the circumstances presented here warranted the grant-
ing of access as provided in the judge’s recommended
Order (discussed below), notwithstanding the Respond-
ent’s right to control its property and ensure its opera-
tions are unhindered. See, e.g., C.C.E., Inc., 318 NLRB
977 (1995).
I dissent, however, from my colleagues’ failure to
adopt the judge’s recommended Order, which, instead of
requiring immediate access, would have required the
Respondent, upon request, to engage in good-faith bar-
gaining with the Union regarding reasonable measures to
permit access while protecting Respondent’s interest in
preserving the confidential nature of its manufacturing
processes. My colleagues discount the need for such
bargaining based on evidence that the Respondent has
permitted access to the facility by certain other nonem-
ployee visitors in the past. The judge found that this evi-
dence caused the Respondent’s property interest to be
“lessened to a degree,” but he made this finding when
addressing whether any access was warranted under Ho-
lyoke Water Power, supra. At the same time, the judge
also found that the Respondent possesses bona fide con-
fidentiality concerns. In addition, the judge found that
Respondent and the Union had negotiated “similar
agreements” in the past regarding workplace protocols,
other documents, and a DVD that showed some of Re-
spondent’s operations. Accordingly, I believe the record
ty interest, adopted the judge’s remedy allowing access “for reasonable
periods and at reasonable working or production times” (similar to the
scope restrictions that we have imposed here), but allowed the employ-
er to “protect its interest as it has with other visitors by covering such
‘secret’ portions of its product or production.” Id. at 981. Here, there is
no evidence that the Respondent has ever taken similar measures with
visitors to protect its asserted confidentiality interest (by covering se-
cret things or by other means); indeed, as noted above, the record
shows otherwise.
3 We shall substitute a new notice to conform with Durham School
Services, 360 NLRB 694 (2014).
361 NLRB No. 77

CATERPILLAR, INC. 847
warrants the remedial order fashioned by the judge,
which provided for good-faith bargaining, upon request,
regarding reasonable measures to protect Respondent’s
interest in preserving the confidentiality of its manufac-
turing processes.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT refuse to bargain in good faith with the
United Steel, Paper and Forestry, Rubber, Manufactur-
ing, Energy, Allied Industrial and Service Workers Inter-
national Union, AFL–CIO/CLC, by denying the Union’s
request for access to our South Milwaukee facility to
investigate an industrial accident and to conduct a health
and safety inspection.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights set forth above.
WE WILL, upon the Union’s request, grant access, by
the Union’s Health and Safety Specialist, to reasonable
places within the South Milwaukee, Wisconsin facility,
for a reasonable period and at a reasonable time, to inves-
tigate an industrial accident and to conduct a health and
safety inspection, including investigating all of the pro-
cesses used to turn crawler assemblies.
CATERPILLAR INC.

The Board’s decision can be found at
www.nlrb.gov/case/30–CA–064314 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1099 14th Street, N.W., Washington, D.C.
20570, or by calling (202) 273-1940.