E. I. du Pont & Co.

National Labor Relations Board - Board Decisions

Jan 16, 1991

301 N.L.R.B. 155 (N.L.R.B. 1991)

155
301 NLRB No. 14
E. I. DU PONT & CO.
1 Safety, health and environmental, people, manufacturing costs, quality, eth-
ics, and change and renewal.
2 One of the two, Lorraine Pobanz, testified that she participated voluntarily
in the filming.
3 Thus, for example, if an employer asked employees to take a wage cut
voluntarily, the employer would still be required to bargain. Because wages
Continued
E. I. Dupont de Nemours & Company and Chem-
ical Workers Association, Inc., a/w Inter-
national Brotherhood of Dupont Workers.
Cases 4–CA–17014, 4–CA–17370, and 4–CA–
17395
January 16, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On March 16, 1989, Administrative Law Judge Nor-
man Zankel issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel and Charging Party filed briefs in
opposition.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions
only to the extent consistent with this decision.
Although we agree with the judge’s analysis of the
issues involving the railroad map and the business eth-
ics policy, and his findings of 8(a)(5) violations as to
both, we part company with him on his findings and
conclusions with regard to the ‘‘Principles of
Progress’’ videotaping. The Respondent, having formu-
lated six principles1 around which it proposed to con-
duct its business, elected to disseminate them to its
work force of several thousand employees through a
professionally produced videotape. On December 1,
1987, the Respondent’s training center issued a memo-
randum to its human relations network staff requesting
them to select employees in their sections to be inter-
viewed on videotape regarding their opinions about the
Respondent’s new principles. The Union found out
about this request and immediately requested bar-
gaining. It contended that the use of unit employees
for such purposes was a condition of employment. The
Respondent’s response was that, because the employ-
ees’ participation was voluntary, it was not required to
provide notice and an opportunity to bargain about the
videotaping to the Union.
The videotaping took place about December 9,
1987. Two of the 10 bargaining unit employees who
took part in the taping testified at the hearing. Both
testified that they were notified that they had been
scheduled to participate, but that they were not told
they had to appear.2 There is no evidence that super-
visory or management personnel conveyed to the em-
ployees that participation in the taping was part of
their jobs. The Respondent has filmed bargaining unit
employees in the past; however, it has never informed
the Union of these instances. Union President Morris
maintained without contradiction that he was unaware
of such instances until the Union began investigating
the instant case.
The judge concluded that the Respondent violated
Section 8(a)(5) and (1) by soliciting employees to par-
ticipate and videotaping them in ‘‘Principles of
Progress’’ without first having given the Union notice
and an opportunity to bargain about those actions. He
found the issue to be a mandatory subject for collec-
tive bargaining, applying Ford Motor Co. v. NLRB,
441 U.S. 488 (1979), in which the Supreme Court
upheld a Board finding that in-plant food prices and
services are a mandatory subject of bargaining. The
Court’s decision rested primarily on the following con-
siderations: (1) that the matter is of deep concern to
workers; (2) that the matter is plainly germane to the
working environment; and (3) that the matter is not
among those managerial decisions which lie at the core
of entrepreneurial control.
Applying the Ford Motor Co. criteria, we reach the
opposite result and find that no violation was com-
mitted with respect to the circumstances relating to
‘‘Principles of Progress.’’ Not only did the Respondent
maintain that the employees’ participation in the video
was voluntary, but also the employees apparently un-
derstood that to be the case. Regardless of how the Re-
spondent may have disseminated its request that they
participate, it effectively communicated to them that
they retained an element of choice in the decision. Had
the Respondent ordered or compelled the employees to
participate, we would be faced with a different matter
because, in that situation, the videotaping would have
become a condition of employment, and a refusal to
comply with the order could potentially have resulted
in discipline for the employee. Here, however, because
the employees were free to decline to participate, the
videotaping could not have been a matter of deep con-
cern to the employees nor ‘‘plainly germane’’ to their
working environment.
We are also persuaded that the videotaping was not
a mandatory subject of bargaining by the fact that it
did not constitute a part of the employees’ day-to-day
responsibilities. If participation in company
videotaping had been included as part of their regular
job duties, we would be more likely to view it as a
term or condition of employment giving rise to a man-
datory bargaining obligation; in that case, it would ar-
guably become ‘‘plainly germane’’ to their working
environment. Ford Motor Co., supra.3 This combina-
156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
expressly fall within the bargaining obligation defined in Sec. 8(d) of the Act,
any proposed change in those rates would be subject to mandatory bargaining.
See Preece Coal Co., 289 NLRB 731 (1988), in which the employer directly
approached employees to ask them to take a pay cut at a time when it was
bound by an existing collective-bargaining agreement, and was found to have
violated Sec. 8(a)(5) and (1).
4 In its discussion of this subject, the Supreme Court in Ford Motor Co. re-
lied on the concurring opinion of Justice Stewart in Fibreboard Corp. v.
NLRB, 379 U.S. 203, 223 (1964):
Decisions concerning the commitment of investment capital and the basic
scope of the enterprise are not in themselves primarily about conditions of em-
ployment, though the effect of the decision may be necessarily to terminate
employment. If, as I think clear, the purpose of Section 8(d) is to describe
a limited area subject to the duty of collective bargaining, those management
decisions which are fundamental to the basic direction of the corporate enter-
prise or which impinge only indirectly upon employment security should be
excluded from that area.
5 See also Alexander Linn Hospital Assn., 288 NLRB 103 (1988), enfd. sub
nom. NLRB v. Wallkill Valley Hospital, 866 F.2d 632 (3d Cir. 1989). Cf.
United Technologies, 274 NLRB 1069 (1985).
6 See Gordonsville Industries, 252 NLRB 563, 568 (1980). Cf. Leland Stan-
ford Jr. University, 240 NLRB 1138, 1142–1144 (1979).
7 See Pennsy Supply, 295 NLRB 324 (1989), Camvac International, 288
NLRB 816, 819–820 (1988), and Taylor Chair Co., 292 NLRB 658 fn. 2
(1989).
tion of factors—that the employees’ participation was
voluntary and that participation was not a part of their
regular duties—militates against finding a mandatory
bargaining obligation on the part of Respondent over
the videotaping.
Nor do we find that the final Ford Motor Co. con-
sideration, whether the matter is among those manage-
rial decisions that lie at the core of entrepreneurial
control,4 suggests a mandatory bargaining obligation
on the Respondent’s part. We find that this videotape
remained within the sphere of management prerogative
because it was conceived and executed as an instru-
ment merely to disseminate newly formed management
principles to a broad audience of both unit and nonunit
employees. There was no attempt by management to
erode the Union’s status as exclusive bargaining rep-
resentative or to put itself into a more advantageous
posture for negotiations. The videotaping did not rep-
resent any change in an important facet of the daily
lives of unit employees, nor impinge on their employ-
ment security. The Respondent’s plan to communicate
the principles throughout the plant, as well as its
means of doing so, were legitimate management deci-
sions which, under all the circumstances, we find to be
excluded from the mandatory subjects of bargaining
defined in Section 8(d) of the Act.
Contrary to the judge, we are not persuaded that the
vice present in Bob’s Big Boy Restaurants, 264 NLRB
432 (1982), is present here. In that case, the employer,
while refusing to recognize or bargain with the union
as ordered by the Board, conducted attitude surveys
seeking employees’ opinions about how to improve
working conditions. The Board held that such direct
dealing constituted individual bargaining in derogation
of the employer’s bargaining obligation to the union in
violation of Section 8(a)(5) and (1).5 Here by contrast,
there is no complaint allegation of unlawful direct
dealing with employees that has as its purpose or ef-
fect the erosion of the Union’s status as exclusive bar-
gaining representative.
We are also not faced with an employer’s effort to
solicit grievances with an express or implied promise
to improve benefits or conditions of employment, in
derogation of a union’s effort to organize employees or
to negotiate an agreement.6 Nor does this case present
an effort by the Respondent to interrogate employees
in order to ascertain their union sentiments, the extent
of their union activities, or the identity of union activ-
ists.7 We hold that under the unique circumstances pre-
sented, employees had the freedom to choose whether
to participate in the taping, and when such participa-
tion was not part of their regular duties, the Respond-
ent did not violate the principles enunciated in Ford
Motor Co. by soliciting unit employees to participate
in the filming of a videotape intended merely to dis-
seminate throughout its plant certain business prin-
ciples it had devised.
For the foregoing reasons, we find that the Respond-
ent was under no obligation to notify and bargain with
the Union over its plan to use bargaining unit em-
ployee volunteers in videotaping ‘‘Principles of
Progress.’’ We therefore dismiss the complaint allega-
tions relating to the videotaping. We have amended the
conclusions of law, the remedy, the recommended
Order, and the notice accordingly.
AMENDED CONCLUSIONS OF LAW
Delete Conclusions of Law 4 and 5 and renumber
the subsequent paragraphs.
AMENDED REMEDY
1. Delete paragraphs (A) and (B) and reletter the
subsequent paragraphs.
2. Substitute the following for the judge’s paragraph
(E).
‘‘E. Upon the Union’s request, incorporate any
agreements reached upon the subject matter of the eth-
ics policy into a written document, and sign it.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, E. I.
du Pont de Nemours & Company, Deepwater, New
Jersey, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Delete paragraphs 1(a) and (b) and renumber the
subsequent paragraphs.
2. Delete paragrpahs 2(a) and renumber the subse-
quent paragraphs.
3. Substitute the attached notice for that of the ad-
ministrative law judge.
157E. I. DU PONT & CO.
1 The Union represents these employees in two bargaining units, the descrip-
tions of which are contained in collective-bargaining agreements with the Em-
ployer (see G.C. Exhs. 2–5). All parties agree the units described in those doc-
uments are appropriate for collective bargaining under the Act.
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, join, 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 pro-
tected concerted activities.
WE WILL NOT attach conditions to the delivery to
Chemical Workers Association, Inc. a/w International
Brother hood of Dupont Workers of the original or an
exact copy of a wall-size map showing the location of
the Chambers Works narrow gauge railroad between
1965–1970.
WE WILL NOT apply our business ethics policy to
employees in the bargaining units described below un-
less we first give the above-named labor organization
notice of such intention and a chance to bargain with
us about it:
The two bargaining units described in our collec-
tive-bargaining agreements dated October 22 and
November 5, 1982 are appropriate bargaining
units under Section 9(b) of the National Labor
Relations Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
any of their rights listed at the top of this notice.
WE WILL immediately deliver the original or an
exact copy of a wall-size map showing the location of
the narrow gauge railroad at Chambers Works between
1965–1970, to Chemical Workers Association, Inc.,
a/w International Brotherhood of Dupont Workers, on
request of that labor organization.
WE WILL, on request, bargain collectively with the
above-named labor organization over application of
our business ethics policy to the bargaining unit em-
ployees described above and, if agreements are
reached, WE WILL put them in writing and sign them.
WE WILL immediately rescind any and all discipli-
nary action taken against any bargaining unit employee
for breach of our business ethics policy; and WE WILL
remove all references to such discipline from the em-
ployees’ personnel records, and will simultaneously
notify such employees and the above-named labor or-
ganization, in writing, that such rescission has been ac-
complished and that no disciplinary action in the future
will be based on the discipline so rescinded.
E. I. DU PONT DE NEMOURS & COM-
PANY
Dona Nutini, Esq. and Henry R. Protas, Esq., for the General
Counsel.
Charles E. Mitchell, Esq., of Wilmington, Delaware, for the
Employer.
Howard S. Simonoff, Esq., of Haddonfield, New Jersey, for
the Union.
DECISION
STATEMENT OF THE CASE
NORMAN ZANKEL, Administrative Law Judge. This case
was tried in Philadelphia, Pennsylvania, on October 19 and
20 and on November 30, 1988. The charge in Case 4–CA–
17014 was filed on December 18, 1987; in Case 4–CA–
17370 on May 18, 1988; and in Case 4–CA–17395 on May
26, 1988. A consolidated complaint was issued July 22,
1988.
At all material times, the Union has been the exclusive
collective-bargaining representative of the Employer’s pro-
duction, engineering, stores and transport, construction, and
laboratory and clerical employees at its Deepwater, New Jer-
sey facility.1
The complaint alleges the Employer refused to bargain
collectively with the Union by soliciting bargaining unit em-
ployees to participate in a videotaping program and by actu-
ally videotaping such employees without having first given
the Union a chance to bargain over the subject; by refusing
to provide the Union with a wall-size map of a narrow gauge
railroad which operated at Chambers Works between 1965
and 1970 (claimed to be information necessary and relevant
to the Union’s performance of its function as collective-bar-
gaining agent); and by unilaterally implementing a ‘‘Business
Ethics Policy’’ for bargaining unit employees.
At the hearing, all parties had opportunity to introduce and
meet material evidence and to argue orally on the record. All
parties filed posthearing briefs.
On the record before me, and from my observation of the
demeanor of the witnesses, and after careful consideration of
the briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Employer, a Delaware corporation, has been engaged
in the manufacture of chemicals and related products. During
the calendar year immediately preceding complaint issuance,
the Employer, at Chambers Works, purchased and received
goods and materials exceeding $50,000 in value directly
from points outside New Jersey.
158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The operative facts are substantially undisputed. Those reported here are
a composite of unrefuted evidence, admissions, stipulations, and undisputed
documents. Not every bit of evidence, or argument based on it, is discussed.
However, each has been considered. My factual presentation contains only
those matters I conclude are relevant and essential to a resolution of the issues.
Omitted material is deemed irrelevant, superfluous, or of no probative value.
The Employer admits, the record reflects, and I find it has
been an employer engaged in commerce within the meaning
of the Act at all relevant times.
All parties agree, the record reflects, and I find that the
Union has been a labor organization within the meaning of
the Act at all relevant times.
II. THE ISSUE
Did the Employer fail and refuse to bargain collectively in
good faith with the Union by failing to notify the Union of
its intention to solicit employees to participate in videotaping
and failing to give the Union a chance to bargain about that
subject; by neglecting its duty to furnish information; and by
engaging in impermissible unilateral conduct when it imple-
mented its business ethics policy to bargaining unit employ-
ees?
I shall answer each question posed affirmatively and find
the Employer violated the Act in every respect alleged in the
complaint.
III. THE FACTS2
A. Background
The Union has been the contractual collective-bargaining
representative of two units of employees at Chambers Works
for many years: the production unit of approximately 2200
employees; and the clerical unit of approximately 186 em-
ployees.
Chambers Works encompasses an area of about 4 or 5
square miles. The Employer conducts a variety of activities
at that site. It manufactures tetra ethyl lead (freon) products
used as refrigerants, agrichemicals, and polymer products.
The Employer also engages in chemical research and labora-
tory testing of its products at that facility.
Also, the Employer maintains a waste water facility at
Chambers Works. There, most of the chemical waste which
evolves from manufacturing functions is treated at the waste
water treatment site and then solid residues are buried in a
protective lined landfill at that location.
At least between 1965 and 1970, the Employer operated
a narrow gauge railroad at Chambers Works. The railroad
was used for a variety of purposes, among which was trans-
portation of chemicals and waste materials from buildings on
the site to areas at Chambers Works where they were
dumped into unprotected underground locations. Both the
railroad’s tracks and many of the buildings serviced by the
railroad were no longer in existence in 1987. At that time,
neither the railroad tracks nor locations of former buildings
were visible. The precise dates of demolition do not appear
in the record.
B. Videotaping
On December 3 or 4, 1987, Union President L. Morris
first learned of the Employer’s intention to produce a video-
tape entitled ‘‘Principles of Progress.’’ That information
came to Morris’ attention when he was delivered a copy of
an interoffice memorandum, dated December 6, 1987 (G.C.
Exh. 6). The memorandum originated in the Employer’s
training center and was addressed to the Employer’s human
relations network staff.
The memorandum advised the recipients that they should
select employees to be interviewed ‘‘for the forthcoming vid-
eotape on the ‘Mission and Principles’ recently developed by
the plant staff.’’ The memorandum contained guidelines for
selection of employee participants and directed that selec-
tions be made by December 4.
A day after Morris received the interoffice memorandum,
he learned that two clerical unit employees had been asked
to take part in the videotape program. Morris immediately
contacted R. Little, business unit manager for the Chambers
Works human relations department. Little acknowledged the
Employer was canvassing unit employees to participate in
the videotaping.
Morris protested that the Employer did not notify the
Union of its intentions and claimed the use of unit employees
for such purposes was a condition of employment. Little re-
sponded that employees’ participation was strictly voluntary
and the Employer was, therefore, not required to bargain
about that subject.
The record reflects that the videotaping of employees was
conducted at least on December 9. Two clerical bargaining
unit employees, Phyllis S. Shields and Lorraine Probanz,
who participated in the videotaping testified at the instant
hearing. Each said she was interviewed on that date in front
of videotaping equipment and answered questions concerning
quality, costs, and ethics at the plant.
Although each testified in conclusory terms that she volun-
tarily took part in the interview, each also was
uncontradicted in her testimony that her participation directly
resulted from directives of their supervisors. Thus, Shields
testified that E. Stafford, her supervisor, told her she had
been scheduled to participate, and Probanz asserted that R.
Pierce, her supervisor, told her he would like Probanz to par-
ticipate in the taping.
Both Shields and Probanz were asked questions by an in-
dividual who was not regularly employed by the Employer,
but who had been engaged specially to produce the videotape
in question. Each provided unrehearsed answers for about
one-half hour. The final version of the tape (viewed at the
hearing) runs about 26 minutes. Only about 43 seconds of
Shields’ and about 30 seconds of Probanz’ interviews appear
in the final tape. Only their responses to certain questions ap-
pear, but not the questions. There is no dispute that those re-
sponses are accurate reproductions of the portions of their
interviews selected for final inclusion in the tape.
Shields and Probanz spent in excess of 1 hour of their reg-
ular working time on December 9 waiting for, and partici-
pating in, their separately conducted interviews. The Em-
ployer paid them for this time.
A day after Shields and Probanz were interviewed and
taped, each was asked to sign a release (G.C. Exhs. 15, 16).
That document gave the Employer broad permission to use,
‘‘reproduce, copyright and publish, for commercial and art
purposes, in any medium of communication . . . with or
without my name or accompanying quotation or voice re-
cording, the . . . videotape.’’ The release indicated the tape
was, and would remain, the Employer’s property and that the
159E. I. DU PONT & CO.
Employer ‘‘shall have the right to make alterations in . . .
[it].’’
Shields and Probanz were given a chance to preview the
completed tape on February 8. Morris and Union Vice Presi-
dent D. Robertson attended the review. There is no evidence
that any of them found what they saw objectionable in any
respect.
The parties stipulated that a total of 10 bargaining unit em-
ployees (including Shields and Probanz) appear in the tape’s
final version (see G.C. Exh. 17).
On December 15, the Union and Employer conducted a
regularly scheduled monthly joint executive meeting. The
Union objected to the Employer’s unwillingness to bargain
over the videotaping. The Union claimed it was a condition
of employment and asked to see the completed product. In
support of its request for viewing, the Union cited an exam-
ple of the Employer’s previous videotaping of employees
which came to the Union’s attention after its completion. On
review, the Union had complained the earlier tape contained
distasteful scenes, and the Employer agreed to destroy that
tape.
The Employer agreed to show the completed ‘‘Principles
of Progress’’ tape to the Union. Either Little, or his assistant
H. Gonzalez, said the Employer would take the Union’s re-
quest for bargaining about the tape under advisement and re-
spond at a later time.
The next day, Morris learned of a second videotape on
safety from a union steward who told Morris he recently had
been taped together with other unit employees and the plant
manager. Morris again objected to Little that the Union
should have been notified of the Employer’s intention to tape
and given a chance to bargain. Little said he believed the
Employer had no obligation to bargain over the videotaping.
(The safety tape does not appear as an issue in the instant
case.)
Morris immediately consulted the Union’s attorney who
filed the charge in Case 4–CA–17014.
The parties’ collective-bargaining agreement contains ne-
gotiated procedures for the Employer’s solicitation of em-
ployee volunteers. The situations are explicit, few, and lim-
ited. Essentially, such procedures apply to work-related lat-
eral transfers of unit employees (1) between buildings at
Chambers Works, (2) among work crews of inspectors in the
logistics department, (3) among work crews in the mechan-
ical department, and (4) among laboratory technicians who
want to move from one location to another.
Historically, the Employer also has sought volunteers with-
out recourse to the provisions of the collective-bargaining
agreement. Such a situation applies to annual United Way
campaigns. For that project, the Employer and Union cooper-
ate. The Employer has advised the Union in advance of its
intention to conduct those campaigns and the Union agreed
that management officials could solicit unit employees’ par-
ticipation.
There are other examples of the Employer’s solicitation of
unit employee participation in situations not covered by the
collective-bargaining agreement. They involved (a) temporary
transfers of employees between Chambers Works and an-
other of the Employer’s facilities (Repauno plant) situated
nearby, (b) wear-testing of new clothing, and (c) educational
training. The record reflects that the Employer consistently
gave the Union prior notice before solicitation of volunteers
for any of these programs.
C. The Railroad Map
The Union conducted several meetings at which numerous
clerical workers, in particular, expressed concern over a sig-
nificant increase in the incidence of breast and cervical can-
cer among the Chambers Works employees. Also, the em-
ployees noted a high rate of open heart surgeries and brain
tumors afflicted employees at that facility.
The Union became concerned that situation might be at-
tributable to prolonged exposure of employees to toxic
chemicals. Morris explained, ‘‘One of the probably most de-
structive, life destructive chemicals that was used on the
(Chambers Works) site back when the narrow gauge trains
were utilized on the plant was betanaphthelamine which was
the cause of bladder tumors and we (had) somewhere in the
neighborhood of 300 people that died as the result of bladder
tumors working with the betanaphthelamine on that plant
site.’’ (Tr. 37.)
The record reflects the railroad track removal occurred
concurrent with the Employer’s installation of the protective
lined landfill and construction of the wastewater treatment
plant. Before the advent of the lined landfill, the waste
chemicals were taken over the narrow gauge tracks to a vari-
ety of locations at Chambers Works and dumped into open
trenches along the tracks. Each dumping site was then cov-
ered over. As earlier indicated, the dumping sites ultimately
became totally obliterated from view.
In early February 1988, Morris orally asked an engineering
supervisor, S. DeFrank, for a copy of a plant map which
showed the location of the narrow gauge railroad tracks be-
fore the tracks were removed.
Morris’ request for the map was conveyed to the Employ-
er’s human relations department. Morris was advised the Em-
ployer would furnish the map if the Union would agree to
restrict its use and not provide the map to outside (nonunion)
sources without the Employer’s written permission. Morris
found this response unsatisfactory. He turned the problem
over to Union Vice President Robertson and to Union Treas-
urer, W. Gant.
Gant and Human Relations Representative Gonzalez dis-
cussed the map issue on April 28, 1988. At Gonzalez’ re-
quest, Gant submitted the map request in writing. (See G.C.
Exh. 14.) The request was for a ‘‘wall size map [which]
show[s] the narrow gauge railroad in a time that fairly rep-
resents the Plant in a period between 1965–1970.’’
In early June, Jamison delivered a copy of the map to
Robertson. Also delivered was a document (R. Exh. 1) which
contained the language of the Employer’s proposed restric-
tions on the map’s use. Following is the full substantive text
of the agreement.
The Union agrees that:
[T]he map provided will be used exclusively by the
Union and its legal counsel for Management/Union in-
plant business only for the purpose of addressing mat-
ters affecting bargaining unit employees.
The map will not be provided to any outside source
such as governmental entities, interest groups, media,
etc. without Management’s written permission.
Copies of the map will not be made.
160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Little testified these restrictions were attached to the deliv-
ery of the map to the Union because the Employer was
‘‘very concerned about misuse or misinterpretation of the
map’’ (Tr. 159). In this connection, Little asserted he had
heard Morris make unfair characterizations about Chambers
Works in terms of health and safety performance to a munic-
ipal incinerator site commission. Little claimed he was ‘‘con-
cerned’’ that Morris might ‘‘use the map in some way to try
to substantiate or support those misleading statements’’ (Tr.
159.)
Also, Little candidly testified the conditions were imposed
‘‘to make sure that . . . [the map] . . . was used in an ap-
propriate way’’ (Tr. 207). He further explained this meant ‘‘a
way that Dupont felt was appropriate’’ and ‘‘to its interest’’
(Tr. 207).
Finally, Little summarized that the conditions were needed
‘‘just to make sure that people had a full and clear under-
standing of whatever may have taken place [sic] in the past
. . . . we just wanted to make sure that people had all the
things to consider when they looked at [sic] anything associ-
ated with the map, and any of the places where materials
may have been dumped in the past’’ (Tr. 214).
Roberston was instructed to return the map, because of the
proposed restrictions. He did so the day following its receipt.
There is no evidence the Union made any use of the map.
No union representative has ever signed the agreement.
Morris testified, in effect, that the restrictions impeded the
Union’s intended use of the map to assist it in conducting
an environmental impact study. (The Employer does not dis-
pute the Union’s claim the map was relevant and necessary
to performance of its collective-bargaining obligations.)
According to Morris, such a study would involve identi-
fication and examination of former dumping sites by consult-
ants of the Union’s selection. Morris also testified the Union
could not agree to withhold relevant information from appli-
cable governmental agencies. During cross-examination,
Morris acknowledged the proposed agreement contained a
provision for the Employer’s authorization for such use.
The Employer has made no effort to deliver the map any
time after it had been returned by the Union, and the Union
has remained steadfast in its refusal to accede to the terms
for the Union’s use of the map.
D. The Ethics Policy
Before September 1987, the Employer maintained a Busi-
ness Ethics Policy at Chambers Works. The policy was in
writing. In effect, it set forth a code of conduct which the
Employer expected its personnel to maintain in functioning
on the Employer’s behalf. Apparently, the policy had not
been explicitly applicable to bargaining unit employees up to
that time.
The Employer presented the Union with a copy of the eth-
ics policy (G.C. Exh. 7) at their joint management/union ex-
ecutive committee meeting on September 21, 1987. The Em-
ployer representatives said they wanted the policy to apply
to bargaining unit employees.
The Union asked why the Employer wanted to impose a
management document upon bargaining unit employees. The
Employer answered that there had been two or three cases
where employees had been involved in questionable behavior
and the Employer felt it was necessary to make its ethics
policy applicable to the bargaining unit personnel as well as
management officials.
The Employer said it was presenting the policy to the
Union at the September 21 meeting so the parties could ne-
gotiate over its applicability to bargaining unit employees.
The Union examined the written policy at that meeting and
told the Employer there would be questions about the policy
and the Union would raise them at a later date.
Morris later studied the Employer’s ethics proposal, con-
ferred with the Union’s legal department, and prepared a
written list of questions, dated November 2, 1987, about the
proposal (G.C. Exh. 8). He delivered the questions to either
Gozalez or C. Jamison in the Employer’s human relations
department.
Jamison sent Morris a letter on November 23 (G.C. Exh.
9) which contained answers to some of the questions. Morris
telephoned Jamison after he received Jamison’s letter to
complain that Jamison had been too generalized in his re-
sponse. He told Jamison the Union needed the Employer to
be more specific.
On December 8, Morris wrote Jamison that he received
Jamison’s November 23 letter but that it had not answered
a number of questions posed by the Union in its November
2 document. Morris’ December 8 letter (G.C. Exh. 10) en-
closed a copy of his November 2 questions with those assert-
edly unanswered circled. Also, Morris propounded some ad-
ditional questions.
Morris testified that the ethics proposals were only briefly
mentioned during the parties’ joint executive meetings in De-
cember 1987 and January 1988. At those sessions, Morris re-
called the Employer’s representatives asking what was the
status of the ethics subject, and the Union responded it had
asked questions and were still awaiting management’s re-
sponse. Also, Morris claimed the Union requested the Em-
ployer to bargain over the ethics proposals during this time
period.
Jamison sent Morris a letter on February 4, 1988 (G.C.
Exh. 11), in response to Morris’ December 8 letter. This let-
ter from Jamison contained more answers to the Union’s
questions. Morris believed that the Employer had not satis-
factorily answered the Union’s questions. He spoke with
Jamison and told him the Union would review the contents
of the February 4 letter and would respond to Jamison.
The parties held no substantive discussions concerning the
ethics proposals during their February and March 1988 joint
meetings, except for the Employer inquiring whether the
Union was ready to respond to Jamison’s February 4 letter.
Morris recalled the Union simply replied it was still working
on a response.
By letter dated April 14 (G.C. Exh. 12), Jamison com-
plained to Morris that the Union had not yet provided the
input it promised during the February and March joint meet-
ings and advised Morris the Employer intended to the ethics
proposals on May 1, 1988 ‘‘if no Union input is received be-
fore or at the next’’ joint meeting.
The next joint meeting was conducted on April 28. Morris
delivered a document entitled ‘‘Union Response to the Com-
pany Proposed Business Ethics Policy’’ to Jamison at the
meeting (G.C. Exh. 13). This response contained the Union’s
position over some of the Employer’s proposals and con-
tained the Union’s suggestions for changes. Also, the Union
declared it ‘‘is prepared to established [sic] negotiation meet-
161E. I. DU PONT & CO.
ings on the Ethics Policy Proposal,’’ asked the Employer to
advise when it is prepared to meet, and give the Union
enough notice so it could have its ‘‘solicitor’’ present for
those negotiations.
After the April 28 meeting, Gonzalez agreed to schedule
a separate executive session with the Union to discuss the
ethics policy on May 26. However, the May 26 meeting was
not conducted, because Gonzalez discovered the union rep-
resentatives were scheduled for regular work that day. Under
the Employer’s accounting procedures, the Employer would
have suffered increased costs if there actually had been a
joint meeting of the parties on May 26. The May 26 meeting
was canceled, but Gonzalez promised to raise the ethics issue
at the regularly scheduled monthly meeting slated for May
24.
On May 24, Gonzalez told the union representatives that
he believed an impasse existed and the Employer would im-
plement the ethics policy on June 1. The Union told the Em-
ployer representatives the Employer had an obligation to ne-
gotiate this matter with the Union and charged the Employer
with having failed to do so.
The policy actually was implemented on June 1 and the
parties have had no further negotiations on the subject. The
Union contends no material substantive discussions were
held between the parties regarding the ethics policy pro-
posals, with one exception. Morris acknowledged that
Jamison addressed the issue of the extent to which discipli-
nary action taken against a bargaining unit employee could
be challenged. In that regard, Morris recalled Jamison telling
the Union that disciplinary actions would be subject to the
contractual arbitration provisions, but the ethics policy itself
was not arbitrable.
Finally, Morris claimed the Union told the Employer that
the ethics policy subject was of such a magnitude that nego-
tiations over that subject could not be conducted during the
regular monthly joint executive meetings. Rather, Morris said
the Union requested such negotiations be conducted at meet-
ings specifically arranged for that purpose. Except for the
scheduling the May 26 meeting (canceled without convening)
the only discussions concerning the ethics policy occurred
during the parties’ regular monthly meetings. Morris claimed,
without contradiction, that no more than 10 or 15 minutes
was devoted to discussion of the ethics policy at any of the
monthly meetings.
IV. ANALYSIS
A. Videotaping
General Counsel argues that the videotaping of the em-
ployees in the ‘‘Principles of Progress’’ tape is a mandatory
subject for collective bargaining. As such, General Counsel
contends the Employer was obliged to notify the Union of
its intention to engage in the videotaping and give the Union
a chance to bargain over the terms and conditions of the tap-
ing. The Union agrees with this position. Further, the Union
cites Ford Motor Co. v. NLRB, 441 U.S. 488 (1979), also
cited by General Counsel, as having established the criteria
which should form the foundation of a finding that the
videotaping in this case is a mandatory bargaining subject.
The Employer asserts the videotaping was not a condition
of employment and, therefore, was only a permissive subject
for bargaining. As such, the Employer asserts it could engage
in that activity without prior notice to, or consultation with,
the Union (NLRB v. Borg-Warner Corp., 356 U.S. 342
(1958)).
Alternately, the Employer claims the Union waived its
right to bargain, if such right ever existed. Finally, the Em-
ployer urges that the videotaping under consideration was
conducted in accord with past practice and could not con-
stitute an unlawful unilateral change in the working condition
of the bargaining unit employees. The Employer states, in
any event, a ‘‘unilateral change to be unlawful, must be ma-
terial, substantial, and significant (Alamo Cement Co., 281
NLRB No. 110)’’ [1986].
Inasmuch as the Employer’s failure to give the Union ad-
vance notice of the taping is uncontested, I shall deal prin-
cipally with the matter of whether or not the evidence re-
flects videotaping is a mandatory bargaining subject.
General Counsel offers several bases for her position: (1)
the parties’ past practice shows the Employer historically
bargained with the Union over use of employees as volun-
teers for activities outside their regular work duties (Kendall
College, 228 NLRB 1083, 1087 (1977); (2) the Employer’s
decision of use employees for its own public relations pur-
poses is not the type of decision insulated from mandatory
collective bargaining as a strictly managerial or entrepre-
neurial decision (Otis Elevator Co., 283 NLRB 223 (1987);
and (3) because the interviews which led to the final version
of the videotape required employees to discuss their views of
their working conditions, the videotaping process required
the employees to submit to attitude surveys, over which the
Union was entitled to receive prior notice by virtue of its sta-
tus as the employees’ exclusive collective-bargaining rep-
resentative (Bob’s Big Boy Restaurants, 264 NLRB 432
(1982).
Resolution of the videotaping issue requires scrutiny of its
innate characteristics. No party has cited decisional precedent
directly in point; nor has my independent research uncovered
any such authority. Thus, recourse is made to the Supreme
Court’s declaration of relevant factors to be considered in de-
ciding whether a particular subject matter falls within the
ambit of the Act’s phraseology ‘‘wages, hours, and other
terms and conditions of employment’’ (Sec. 8(d) of the Act).
In Ford Motor Co., supra, the Supreme Court concluded
that the Board’s ‘‘consistent view that in-plant food prices
and services are mandatory bargaining subjects is not an un-
reasonable or unprincipled construction of the . . . [Act]
. . . and that it should be accepted and enforced’’ (441 U.S.
at 498). The Court noted three standards it used in making
this conclusion. Those standards are, whether (1) the matter
under consideration is of deep concern to workers; (2) the
matter is plainly germane to the working environment; and
(3) the matter is among those managerial decisions which lie
at the core of entrepreneurial control.
Further, the Court observed that the facts of the Ford
Motor case illustrated that the disputed subject matter gave
rise to ‘‘substantial disputes’’ and that ‘‘The trend of indus-
trial practice supports . . . [the] . . . conclusion’’ that that
subject matter should be one for mandatory collective bar-
gaining.
I find the evidence shows the Ford Motor factors, applied
here, militate in favor of a conclusion that the Employer’s
videotaping of unit employees is a mandatory bargaining
subject.
162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Only these employees testified to the mechanics of their participation. In
the absence of countervailing testimony, I presume all unit employees who ap-
peared in the tape’s final version also were solicited by supervisory personnel.
4 The stipulation’s text appears at Tr. 297–301 and was received by me in
lieu of the videotapes involved (which appear as rejected E. Exhs. 6–8) so as
not to burden the official record with the considerable irrelevant contents of
the tapes.
It is virtually inescapable that the employees’ participation
in taping of ‘‘Principles of Progress’’ was, and is, both a
matter of deep concern to them individually and also ger-
mane to their working environment. The record reflects one
of the Employer’s bases for its claim the videotaping is not
a mandatory bargaining subject consistently has been that
participation was ‘‘voluntary.’’ In my view, the facts belie
that contention.
The solicitation of employees to participate was initiated
by a memorandum between the Employer’s training center
and its human relations staff. Then, supervisors actually
transmitted the ‘‘invitation,’’ at least to employees Shields
and Probanz.3 Even though there is no evidence that the su-
pervisors explicitly compelled the employees to participate,
their authority over the employees cannot be ignored in an
assessment of the actual nature of the solicitation. This is es-
pecially true when examined in the context of the other at-
tendant circumstances.
These circumstances include the fact that the videotaping
occurred during the unit employees’ regular working time;
the Employer paid the employees for the time spent during
the videotaping interview; and the employees were required
to orally reveal their opinions concerning a variety of em-
ployment conditions. (For example, the tape (G.C. Exh. 17)
shows Shields made a recommendation that the Employer
should strive to have employees feel they are making per-
sonal contributions in the workplace; and was, in effect, crit-
ical of procurement procedures by commenting that persons
who place orders in the Employer’s behalf should be more
cost-conscious. Similarly, Probanz cautioned that she ex-
pected management and other personnel to behave with high
ethical standards and criticized the Employer for having lost
its personal touch with employees.)
That Shields and Probanz apparently were not inhibited in
expression of their views does not show their participation
was voluntary. The surrounding circumstances are more co-
gent indicators of their status. In my view, the manner in
which the employees were chosen to participate, how they
were told about it, the use of working time and Employer’s
funds for financing the participation, and the resultant nec-
essary revelation of employee opinions regarding working
conditions coalesce to create an atmosphere which tends to
be coercive within the Act’s framework.
Patently, the voluntary nature of employee participation in
the taping was a matter of deep concern both for the employ-
ees selected and for the Union. In testimony not previously
described, Shields explained she posed questions regarding
the taping to R. Pierce of the Employer’s human relations
staff (and Probanz’ supervisor) and told him she would not
read from a script; then consulted her husband (a union rep-
resentative) about the taping; and questioned M. Reinhart and
T. Tatersall (the Employer’s unit manager and area consult-
ant, respectively) about why she had been selected. After
Probanz discussed the matter with her supervisor, Pierce (as
described above), she consulted Shields and asked what
Shields knew about the taping. (Shields’ husband is Probanz’
union representative).
Also, the Union wasted no time in challenging the pro-
priety of its solicitation of employees for the ‘‘Principles of
Progress’’ taping. Union President Morris contacted Em-
ployer Manager Little as soon as Morris learned that Shields
and Probanz had been asked to engage in the taping. The
Union’s protests were persistent, numerous, and accompanied
by the filing of the first (4–CA–17014) of the instant three
consolidated unfair labor practice charges.
Clearly, the essence of the Union’s protests was the per-
ception of its officials that this particular taping was materi-
ally different from earlier times that the Employer filmed
employees on videotape. The record reflects that about one-
third of the Employer’s library, which contains about 560
tapes, depict employees in speaking roles of one type or an-
other. Part of the Employer’s defense to the instant allegation
is that ‘‘Principles of Progress’’ was made in conformity
with its past practice. To support this proposition, the parties
stipulated to the relevant contents of several videotapes made
by the Employer between 1981 and 1987.4
My review of the parties’ stipulation persuades me the
Union was well-founded in its concerns that ‘‘Principles of
Progress’’ constituted an important departure from the earlier
taping of employees. Specifically, I find no evidence that the
earlier tapes showed employees in speaking roles giving their
views, or opinions of, working conditions or the Employer’s
operations. Essentially, the earlier tapes carried employees in
candid profiles of them at their work stations; speaking brief-
ly in an educational vein about safety and health; or accept-
ing awards.
In sharp contrast, ‘‘Principles of Progress’’ precisely fo-
cused on the speaking employees pointedly to present their
opinions on a variety of work-related subjects such as costs,
business ethics, interrelationships among people in their
workplace, and environmental conditions.
I find the subjects covered during the employee interviews,
and the employees’ responses, especially in the unedited
version of the tape (not made part of the instant record) cre-
ate a situation which is inherently intimidating. This is par-
ticularly manifest when viewed in the light of the way em-
ployees were selected, solicited, and paid for their participa-
tion.
I conclude the employee interviews underlying ‘‘Principles
of Progress,’’ in effect, comprised a situation analogous to
employee attitude surveys which have been found unlawful.
General Counsel’s citation of Bob’s Big Boy, supra, is illu-
minating. There, the employer conducted a widespread atti-
tude survey among its employees designed to improve work-
ing conditions. That survey actually resulted in changes
being made. The Board found Bob’s Big Boy’s survey com-
prised unlawful direct dealing with employees, in part be-
cause the survey’s subject matter ‘‘concerned working condi-
tions’’ (264 NLRB at 434).
I recognize the instant case is not exactly in point with
Bob’s Big Boy. ‘‘Principles of Progress’’ was intended as a
means of communicating the Employer’s human relations
principles to an audience of about 3600 employees at Cham-
bers Works. There is no evidence any of the instant em-
ployee interviews resulted in changed policy or working con-
ditions. Nonetheless, I conclude the vice present in Bob’s Big
Boy also exists here.
163E. I. DU PONT & CO.
Shields and Probanz, and I presume the other unit employ-
ees who appear in ‘‘Principles and Progress,’’ were subjected
to interviews which required them to give their views on var-
ious working conditions for periods of time considerably
longer than their actual appearances on the final tape. As
previously noted, both Shields and Probanz were interviewed
for slightly more than 1 hour; but the total time each is
shown speaking on the tape is approximately 43 seconds for
Shields and approximately 30 seconds for Probanz.
What occurred here is intrusive. It is more than an other-
wise innocuous opinion poll undertaken, for example, by a
‘‘roving’’ reporter. The sampling of respondents to the inter-
viewer’s questions was not made at random. Specific em-
ployees were solicited by the Employer’s supervisors. This
made suspect the ‘‘voluntary’’ character of employee partici-
pation. The selection and payment process also taints this
videotaping.
This is a situation of an employer eliciting private and per-
sonal information directly from its employees, instead of
dealing with their recognized collective-bargaining agent.
Surely, this context is a classic case for the application of the
legal principles which demand a collective-bargaining rep-
resentative be given notice of an employer’s intentions and
a chance to bargain about them.
No extensive discussion or analysis is needed to establish
the videotape issue meets the Ford Motor standard by which
it must be clear that the videotaping does not lie at the core
of the Employer’s entrepreneurial control. If the taping fits
this category of employer decisions, the Employer must pre-
vail. Such decisions are identified in Otis Elevator Co., 269
NLRB 891 fn. 5 (1984). The Employer is not in the
videotaping or film-making business. There is no basis in
this record to sustain a claim that the disputed videotaping
cannot be a mandatory bargaining subject because it inter-
feres with, or impedes, privileged managerial decision-mak-
ing.
The Court’s Ford Motor observation that the pricing of in-
plant-supplied food and beverages can lead to substantial
labor disputes has a parallel in the case before me. The
record, in its totality, demonstrates the parties’ vigorous pur-
suit of their opposing intractable positions regarding
videotaping. Each has steadfastly remained firm during the
period in which the disputed events took place; and each
maintained its position throughout these proceedings. Sixteen
months have elapsed without resolution of the issue.
The circumstances described in the immediately preceding
paragraph illustrate that the Employer’s videotaping of unit
employees has already reached the level of a substantial dis-
pute between the Employer and Union. In this posture, Ford
Motor teaches that ‘‘National labor policy contemplates that
areas of common dispute between employers and employees
be funneled into collective bargaining’’ (441 U.S. at 499). I
find this quotation most apt in this case. It is an impressive,
though not conclusive, observation of one of the Act’s pur-
poses which I believe should be considered seriously in re-
solving the videotape issue. Doing so lends support to a con-
clusion that the Employer’s videotaping ought to be a man-
datory bargaining subject.
As noted above, the Ford Motor Court took cognizance of
the trend of industrial practice. Concededly, Ford Motor con-
tained documentation of the then-current trend concerning
cost of employer-supplied food services (see Ford Motor, fn.
11), but the instant case is barren of such evidence on an in-
dustrywide basis.
However, the Employer’s own evidence, adduced through
Little, together with its oral and written arguments in this
case, was designed to show that the Employer maintained a
longstanding practice of using videotape for a variety of pur-
poses. That evidence succeeded in demonstrating that em-
ployees had been videotaped in various situations. Evidence
not previously reported reflects the Employer produces 30–
40 videotapes annually. This background, I conclude, estab-
lishes such an ‘‘industrial practice,’’ albeit intraemployer and
not industrywide, which further bolsters the conclusion that
the disputed videotaping should be a mandatory subject for
collective bargaining.
I have earlier noted that the Employer argues that the
Union waived its right to notice and bargaining over the
videotaping, if such a right were declared to exist. The
foundational facts upon which this argument is predicated are
uncertain (see Employer’s posthearing brief, p. 23). Despite
this, I have culled the record to determine whether the waiv-
er argument can be substantiated.
The rapidity with which the Union complained to the Em-
ployer over the videotaping involved here has been reported
above. The evidence must show the Union ‘‘clearly and un-
mistakably’’ (Timken Roller Bearing Co. v. NLRB, 325 F.2d
746, 751 (6th Cir. 1963)) acted in some way to waive its
bargaining right. My study of the record has produced no
probative evidence to sustain the Employer’s waiver conten-
tion.
Finally, I must note the Employer’s defense relies heavily
on its claim that the production of ‘‘Principles of Progress’’
totally conformed to the past practice of the parties. Paradox-
ically, I find the Employer’s reliance on past history virtually
buttresses the positions of the opposing litigants rather than
the Employer.
Historically, it is uncontroverted that the Employer gave
the Union advance notice of, and a chance to bargain over,
use of employee ‘‘volunteers’’ for events outside the scope
of the parties’ contractual provisions which related to lateral
transfers of unit employees. None of those projects required
skills or functions, or were directly connected to, unit em-
ployees’ regular job tasks.
There is no evidence that anyone other than bona fide vol-
unteers participated in such events. Thus, I find the existence
of this past practice persuasive evidence that the Employer
itself historically recognized that solicitation of volunteers to
participate in noncontractual, but work-related, activities is
such a term and condition of employment as would impose
a bargaining obligation upon it (see Kendall College, 228
NLRB 1083, 1087 (1977)).
On the foregoing discussion relative to the videotaping
issue, I find that the Employer’s solicitation of employees to
participate, and videotaping them, in ‘‘Principles of
Progress’’ are mandatory bargaining subjects and that the
Employer’s failure to give the Union advance notice of such
events and an opportunity to bargain about them constitutes
a refusal to bargain, in violation of Section 8(a)(5) and (1)
of the Act.
B. The Railroad Map
Relevance of the narrow gauge railroad map to the
Union’s collective-bargaining obligations is not disputed. All
164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 No party asserts the delivery, and its immediate return by the Union, is
relevant to disposition of the instant issue. I, too, consider these facts not crit-
ical.
6 This purpose is evident by the following excerpt from p. 4 of the Employ-
er’s posthearing brief. ‘‘The Respondent did . . . attach conditions to the pro-
jected use of the map, in an attempt to be able to provide information to out-
side sources, as required, to better place matters in proper perspective as to
material that had in earlier years been deposited in the ground at the site’’
(Emphasis added). Also see Emp. Br. fn. 4.
parties apparently acknowledge the map’s value as an infor-
mation source enabling a comprehensive toxic waste study to
be made.
However, the Employer (contrary to the General Counsel
and Union) contends that the conditions it attached to the
Union’s use of the map were a reasonable protection of the
Employer’s legitimate interests.
As described above, the Employer delivered the map,5 to-
gether with a request the Union agree (1) only the Union and
its legal counsel would use the map; (2) the Union would not
make the map available to nonemployer institutions such as
‘‘governmental entities, interest groups, media, etc.’’ without
the Employer’s written permission; and (3) no copies of the
map would be made.
The pivotal issue is whether the Employer’s conditions
were unduly restrictive under the circumstances. The General
Counsel’s evidence shows the Union requested production of
the railroad map in consequence of employees’ expressed
concerns over a marked increase of cancer cases, open heart
surgeries, and brain tumors among Chambers Works employ-
ees.
The Employer’s evidence, through Little’s quoted testi-
mony as it appears in section III,C, above, shows the condi-
tions were established to conform to the Employer’s own
standards of what would be an appropriate use of the map;
and that the Employer sought to insulate itself from its per-
ceived mischaracterizations of its health and safety record
and activities.6 I can find no evidence or explicit argument
by which the Employer claims anything about the map is
confidential.
The law requires a balancing of interests, including the ex-
amination of all relevant circumstances of each case and the
need for disclosure, to resolve the map issue (Detroit Edison
Co. v . NLRB, 440 U.S. 301, 314 (1979)). In Detroit Edison,
the Supreme Court balanced the union’s interest in obtaining
information relevant to contract administration against the
employer’s interest in maintaining security of psychological
tests questions, answers, and scores. The court upheld the
employer’s refusal to supply that information.
Applying the requisite balancing test, I conclude the Em-
ployer’s conditions were not warranted. No challenge what-
soever appears either to the efficacy of the Union’s desire to
conduct an environmental impact study or to Morris’ asser-
tions of increased serious health problems.
In contrast, my review of the various testimonial expla-
nations of the Employer’s need to impose conditions leads to
the conclusion those conditions were developed merely for
the Employer’s convenience and comfort. I recognize the
Employer is entitled to fair appraisals, by ‘‘outsiders,’’ of its
health, safety, environmental (and other) programs.
However, the record does not at all nearly reflect how the
conditions imposed on delivery of the map will achieve that
end. Even if I were satisfied the evidence showed how the
conditions could safeguard the Employer’s position, on bal-
ance, I conclude the need to conduct an environmental im-
pact study, and the map’s role in such a study, far outweigh
and override the reasons provided to impose those condi-
tions.
The above discussion of the map issue leads me to find,
and I now do so, that the Employer’s imposition of condi-
tions on delivery of the narrow gauge railroad map, in the
surrounding circumstances, was tantamount to a refusal to
comply with the Union’s request for information necessary
and relevant to its performance of its collective-bargaining
obligations. Accordingly, I find the Employer refused to bar-
gain in violation of Section 8(a)(5) and (1) of the Act, as al-
leged in paragraph 8 of the complaint.
C. The Ethics Policy
The evidence shows all parties regarded the application of
the Employer’s business ethics policy to Chambers works
bargaining unit employees an appropriate, and mandatory,
bargaining subject. The Board so holds. Peerless Publica-
tions, 231 NLRB 44 (1976), reaffirmed on this point in sup-
plemental decision 283 NLRB 334 (1987).
The thrust of the Employer’s defense to the allegation that
it unlawfully unilaterally instituted the ethics policy for the
bargaining unit employees is that it was privileged to do so
because the parties had reach an impasse.
That position is based on the observation that 9 months
(September 1987–May 1988) elapsed between presentation of
the policy to the Union and Gonzalez’ impasse declaration;
that the Employer responded to the Union’s requests for fur-
ther information; and that the Union demonstrated its unwill-
ingness to engage in discussions on the subject when it
caused cancellation of the May 26 special meeting by having
all its representatives scheduled for work that day.
The Employer argues, in its posthearing brief, that the
above factors caused it to believe there was ‘‘no willingness
on the Union’s part to proceed with meaningful bargaining,
[so] the . . . [Employer] . . . considered the bargaining to
be at an impasse’’ (E. Br. p. 32). I find the Employer’s reli-
ance on these factors misplaced.
The existence of an impasse is a matter left to the judg-
ment of the trier of fact. Taft Broadcasting Co., 163 NLRB
475, 478 (1967), affd. 395 F.2d 622 (D.C. Cir. 1968). It does
not rely solely on the passage of time, even though the
length of negotiations is an element the Board considers to
resolve this issue. Time is not necessarily controlling. Com-
pare Lou Stechers Supermarkets, 275 NLRB 475 (1985),
with SGS Control Services, 275 NLRB 984 (1985).
A variety of factors enters into a decision as to whether
an impasse in bargaining is present in any particular cir-
cumstances. Some of those factors apply to the instant case.
They are: (a) to what extent the parties have maintained rigid
positions (Lou Stechers Supermarkets, supra; Triple A Main-
tenance Corp., 283 NLRB 449 (1987); (b) whether there is
a possibility of agreement through compromise (Union Ter-
minal Warehouse, 286 NLRB 851 (1987); and whether both
parties mutually understand they are at impasse (Colfor, Inc.,
282 NLRB 1173 (1987)).
I concede substantial time elapsed from the time the Union
received notice the Employer intended to apply the ethics
policy to unit employees until the Employer implemented the
policy for those employees. However, assuming the issue had
been raised at each of the nine regular monthly meetings,
165E. I. DU PONT & CO.
and also was discussed for the full 15-minute maximum es-
tablished by Morris’ uncontradicted testimony, the parties
would have discussed the issue no more than 2-1/4 hours
during that entire period.
This observation, coupled with the circumstances where all
the correspondence indicates the Union was searching for in-
formation during much of this time, tends to negate a conclu-
sion that this record demonstrates rigid adherence of the par-
ties to their positions. In my view, the facts show the Union
could not have formulated its bargaining position before the
aborted May 26 meeting had been arranged. The fact that the
Union still was requesting information in its April 28 letter
(G.C. Exh. 13) supports this conclusion.
Next, I consider the actual scheduling of the aborted May
26 meeting a persuasive indicator that the record as a whole
does not demonstrate that additional meetings between the
parties would have proved futile. The mere fact that the Em-
ployer agreed to schedule and participate in, and did sched-
ule, that special meeting belies any contention that a further
meeting or meetings over the ethics policy could not have
been productive. The arrangement to meet on May 26 re-
flects a willingness to meet (Colfor).
The opposing versions of what took place at the May 24
regular meeting somewhat vary. The variations relate the the
Employer’s contention that it was justified in assuming an
impasse existed because the Union manifestly refused to bar-
gain over the ethics policy. I place little probative value on
the Employer’s evidence which was adduced to cast the
Union in a position of wrongdoer.
I find the testimony of Morris (for the Union) and Little
and Gonzalez (for the Employer), in their composite, consid-
erably more germane and valuable to a resolution of the im-
passe issue. Their testimony is confluent in what I consider
the most important respect. Specifically, it clearly shows
agreement that the parties did not engage in substantive dis-
cussions concerning the ethics policy on May 24.
In such a circumstance, it is entirely appropriate to rely on
the implications which may be derived from the Employer’s
actions in having arranged to meet on May 26. Because no
negotiations on the ethics policy took place on May 24, after
Gonzalez said he would raise the matter that date to replace
the canceled May 26 discussions, I conclude neither party
was justified in assuming it would be futile to engage in fur-
ther discussion. In the absence of the validity of such an as-
sumption, a bargaining impasse cannot exist (see Alsey Re-
fractories Co., 215 NLRB 785 fn. 2 (1974)).
Finally, I find the record totally devoid of evidence from
which I could conclude that parties had a common under-
standing they were at impasse. Gonzalez’ declaration of im-
passe, in all the instant circumstances, clearly was a unilat-
eral expression of the Employer’s view—a view which has
been shown above to be without merit.
On all the discussion concerning the ethics policy, I find
the Employer’s unilateral implementation on June 1 con-
stitutes a refusal to bargain with the Union in violation of
Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. E. I. du Pont de Nemours & Company is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Chemical Workers Association, Inc., a/w International
Brotherhood of Dupont Workers is a labor organization with-
in the meaning of Section 2(5) of the Act.
3. All production, engineering, stores and transport, con-
struction, and laboratory employees at Chambers Works; and
all clerical employees at Chambers Works in the units de-
scribed in the November 5 and October 22, 1982 collective-
bargaining agreements between the Employer and Union
constitute appropriate units for collective bargaining within
the meaning of Section 9(b) of the Act.
4. The Employer’s solicitation of employees to participate,
and videotaping them, in ‘‘Principles of Progress’’ is a man-
datory subject for collective bargaining.
5. The Employer’s solicitation of employees to participate,
and videotaping them, in ‘‘Principles of Progress,’’ without
first having given the Union advance notice and an oppor-
tunity to bargain about those actions, constituted a refusal to
bargain violative of Section 8(a)(5) and (1) of the Act.
6. The Employer refused to supply the Union with infor-
mation relevant and necessary to the performance of its col-
lective-bargaining obligations, in violation of Section 8(a)(5)
and (1) of the Act, when it imposed conditions upon delivery
of a map showing the 1965–1970 location of the narrow
gauge railroad at Chambers Works.
7. The Employer unlawfully failed to bargain collectively
with the Union in violation of Section 8(a)(5) and (1) of the
Act on June 1, 1988, when it unilaterally implemented its
business ethics policy for the employees in the bargaining
units found appropriate in this case and represented by the
Union.
8. The above unfair labor practices affect commerce within
the meaning of the Act.
THE REMEDY
Having found that the Employer engaged in certain unfair
labor practices, I find it necessary to order it to cease and
desist and to take certain affirmative action designed to ef-
fectuate the policies of the Act.
Regarding the affirmative action needed to rectify the un-
fair labor practices in this case, I shall order the Employer
1. On the Union’s request, notify and bargain with the
Union concerning the use of employees in ‘‘Principles of
Progress’’ and the terms and conditions of solicitation, and
use of, bargaining unit employees in any other videotapes
produced, or which will be produced, by or on behalf of the
Employer.
2. To withdraw ‘‘Principles of Progress,’’ and any other
videotapes in which bargaining unit employees participated
without the Union first having had the chance to discuss the
taping with the Employer, from exhibition and screening to
other employees and other persons until the Employer has
given the Union an opportunity to bargain about videotaping,
as provided in subparagraph A, immediately above;
3. On the Union’s request, forthwith deliver the original,
or an exact copy, of a wall-size map showing the location
of the narrow gauge railroad at Chambers works between
1965 and 1970.
4. On the Union’s request, bargain collectively with the
Union over the application of the Employer’s business ethics
policy to bargaining unit employees.
166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 No evidence was presented to show the Employer has a proclivity to vio-
late the Act. I conclude a so-called broad order is not needed. See Hickmott
Foods, 242 NLRB 1357 (1979).
8 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 objec-
tions to them shall be deemed waived for all purposes.
9 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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
5. On the Union’s request, incorporate any agreements
reached on the subject matter of videotaping and ethics pol-
icy into a written document, and sign it.
The record reflects that the ethics policy contemplated dis-
ciplinary action could be taken against employees who
breached its terms. In order to promote meaningful bar-
gaining between the parties, I find it necessary to restore
conditions to where they were before the unlawful conduct
occurred insofar as possible. Accordingly, I shall further
order the Employer.
6. Rescind any and all disciplinary action against any bar-
gaining unit employees who may have been disciplined for
breaches of the business ethics policy; to expunge all ref-
erences to such discipline from the employees’ personnel
records; and to simultaneously notify the affected em-
ployee(s) and the Union such rescission has been accom-
plished and that no disciplinary action in the future will be
based upon the discipline so rescinded.
Finally, the Employer shall be ordered from, in any like
or related manner, interfering with, restraining, or coercing
employees in the exercise of their Section 7 rights,7 and to
post appropriate notices to the attention of its employees.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
The Respondent, E. I. du Pont de Nemours Company,
Deepwater, New Jersery, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Solicitation of bargaining unit employees represented
by Chemical Workers Association, Inc., affiliated with Inter-
national Brotherhood of Dupont Workers to participate in
videotaping, and videotaping such employees, without ad-
vance notice to that labor organization and giving it an op-
portunity to bargain over such activities.
(b) Exhibition and screening of the videotape, ‘‘Principles
of Progress’’ to any of its bargaining unit employees or any
other persons until the above-named labor organization has
been given an opportunity to bargain about the subject matter
as described in the immediately preceding paragraph.
(c) Application of its business ethics policy to employees
in the bargaining units represented by the above-named labor
organization without first giving that organization an oppor-
tunity to bargain over such application.
(d) Attaching conditions to the delivery to said labor orga-
nization of a wall-size map of the Chambers Works narrow
gauge railroad as it was in 1965–1970.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to effec-
tuate the policies of the Act.
(a) Notify and bargain with Chemical Workers Associa-
tion, Inc., affiliated with International Brotherhood of Dupont
Workers, at its request, concerning solicitation of bargaining
unit employees, and the terms and conditions of their partici-
pation, in the ‘‘Principles of Progress’’ videotape and other
videotapes produced, or which will be produced, by or on
behalf of the Employer; and if agreements are reached, re-
duce them to writing and sign them.
(b) Deliver to the above-named labor organization at its re-
quest the original, or an exact copy, of a wall-size wall map
showing the location of the narrow gauge railroad at Cham-
bers Works between 1965–1970.
(c) Bargain with said labor organization, at its request,
over application of the business ethics policy to employees
in the units represented by that labor organization; and if
agreements are reached, reduce them to writing and sign
them.
(d) Rescind any and all disciplinary action taken against
any bargaining unit employee for breaches of the business
ethics policy; immediately expunge all references to such
discipline from the affected employees’ personnel records,
and simultaneously notify such employee(s), and the Union,
in writing, that such rescission has been accomplished and
that no disciplinary action in the future will be based upon
the discipline so rescinded.
(e) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to deter-
mine the extent to which the Employer complies with the
terms of this Order.
(f) Post at its Chambers Works facility copies of the at-
tached notice marked ‘‘Appendix.’’9 Copies of the notice, on
forms provided by the Regional Director for Region 4, after
being signed by the Respondent’s authorized representative,
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 the notices are not altered, de-
faced, or covered by any other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.