281 N.L.R.B. 961 (N.L.R.B. 1986)

Hercules Inc.

National Labor Relations Board - Board DecisionsSep 30, 1986

281 N.L.R.B. 961 (N.L.R.B. 1986)

HERCULES INC. 961 Hercules Incorporated and International Chemical Workers Union, No. 271, AFL-CIO. Case 22- CA-13912 30 September 1986 DECISION AND ORDER BY MEMBERS JOHANSEN , BABSON, AND STEPHENS On 31 March 1986 Administrative Law Judge Edwin H. Bennett issued the attached decision. The Respondent, the Charging Party, " and the General Counsel filed exceptions and supporting briefs, and the Respondent and the Union filed an- swering briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings 2 and conclusions and to adopt the recommended Order as modified. We agree with the judge that the Respondent must permit Local 271's representatives to enter its Parlin , New Jersey facility to investigate industrial accidents, to conduct health and safety inspections, and to conduct tests for determining the presence of toxic or hazardous fumes . We shall , however, modify the remedy, recommended Order, and notice to provide that access of the Union's repre- sentative shall, in keeping with the Board's accom- modation policy set forth in Holyoke Water Power Co., 273 NLRB 1369 (1985), enfd . 778 F.2d 49 (1st Cir. 1985), be limited to reasonable periods and at reasonable times, consistent with the times least likely to disrupt Respondent 's operations , to allow the Union 's representatives to fully investigate in- dustrial accidents , to conduct health and safety in- spections , and to conduct tests for determining the presence of toxic or hazardous fumes. shall take the action set forth in the Order as modi- fied. 1. Substitute the following for paragraph 2(a). "(a) Upon Local 271 's request, grant access to its Parlin, New Jersey facility for reasonable periods and at reasonable times sufficient to allow Local 271's representatives to fully investigate industrial accidents, to conduct health and safety inspections, and to conduct tests for determining the presence of toxic or hazardous fumes." 2. Substitute the attached notice for that of the administrative law judge. 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 ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with the Interna- tional Chemical Workers Union, Local No. 271, AFL-CIO by refusing to grant Local 271's request for access to our Parlin , New Jersey facility in order to allow Local 27l's representatives to inves- tigate industrial accidents, to conduct health and safety inspections, and to conduct tests for deter- mining the presence of toxic or hazardous fumes. WE WILL NOT in any like or related manner re- strain or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL on Local 271 's request, grant access to our Parlin, New Jersey facility for reasonable peri- ods and at reasonable times sufficient to allow Local 271's representatives to fully investigate in- dustrial accidents , to conduct health and safety in- spections, and to conduct tests for determining the presence of toxic or hazardous fumes. HERCULES INCORPORATED ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Hercules Incorporated , Parlin, New Jersey, its officers, agents, successors , and assigns, Hereafter the Union or Local 271. 2 The Respondent has excepted to some of the judge's credibility find- ings. 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. Thomas R. Gibbons, Esq., for the General Counsel. James F. Maher, Esq. (Hercules Inc.), for the Respondent. Francis X. Dee, Esq. (Carpenter, Bennett & Morrissey), for the Respondent. Russell M. Pry, Esq., for the Charging Party. DECISION STATEMENT OF THE CASE EDWIN H. BENNETT , Administrative Law Judge. This case was tried in Newark , New Jersey , on 7 and 8 No- vember 1985,1 on a charge jointly filed by the Interna- ' Unless otherwise stated, all dates are in 1985. 281 NLRB No. 130 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tional Chemical Workers Union, AFL-CIO (Internation- al) and International Chemical Workers Union, Local No. 271, AFL-CIO (Local 271 or Union). The com- plaint, which issued on that charge on 3 July 1985, al- leges that Hercules Inc. (Respondent or Employer) vio- lated Section 8(a)(5) and (1) of the Act by refusing to allow a nonemployee representative of Local 271 access to its plant and facility for the purpose of conducting in- spections relating to the health and safety of employees. The answer generally denies the commission of any vio- lation . In addition, at the hearing , Respondent amended its answer to assert as an affirmative defense that "the complaint is barred by the doctrine of preemption under the Occupational Safety and Health Act of 1970, 29 USC Sec. 651." All parties agree this case raises issues dealing with nonemployee access to an employer's property pursuant to principles of law recited in Holyoke Water Power Co., 273 NLRB 1369 (1985), which in essence , requires that the Board strike a balance between the conflicting inter- ests generated by employees' Section 7 rights to proper representation, and the private property rights of an em- ployer. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by all parties, I make the following FINDINGS OF FACT AND PRELIMINARY CONCLUSIONS 1. JURISDICTION The Employer is a Delaware corporation with an office and place of business in Parlin , New Jersey, where it is engaged in the manufacture of chemicals and related products. In the course of its business operations, Re- spondent annually purchases and receives at the Parlin facility products, goods , and materials valued in excess of $50,000 directly from outside the State of New Jersey. I find, based on Respondent's admissions of the relevant complaint allegations, that it is an employer within the meaning of Section 2(2), (6), and (7) of the Act, and that both the International and Local 271 are labor organiza- tions within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Nature of the Employer's Business The Parlin plant occupies 175 acres in Middlesex County, New Jersey, on which are situated 275 separate buildings for the production , storage , and shipping of various chemical products. The plant operates 7 days a week, 24 hours a day, and 80 percent of its output is de- voted to the production of nitrocellulose, a product made from cotton linter or wood pulp reacted with nitric acid. Two variations of this product are manufactured: a soluble type, which is used in lacquers and inks, and a smokeless grade, which is used in the production of dy- namite and solid rocket propellants . One of the depart- ments involved in the manufacture of nitrocellulose is re- ferred to as the dehydration department where water is removed, and alcohol is added to the cotton or wood pulp. In about 1983 the Employer redesigned the dehydra- tion process and rebuilt that department into one that it considers technologically unique in the chemical indus- try. The uncontradicted evidence is to the effect that the equipment, instrumentation, and technology for the proc- essing of nitrocellulose is unknown to any competitor and has great proprietary value. The entire process, in- cluding some of the equipment and machinery, was de- signed especially for, and built by, Respondent with a re- sulting competitive advantage. Another process involved at the Parlin plant is hy- droxyethl cellulose. In the manufacturing process of that product, the chemical ethylene oxide is used , which is a dangerous and toxic substance because it is a known leu- kemia , causing agent . Here too, the unrefuted evidence establishes the process in which ethylene oxide is used is proprietary by virtue of the design, construction, and equipment involved. Thus, it is beyond dispute that the Parlin plant involves the production and handling both of explosives and toxic materials , which products are ac- knowledged as dangerous to the employees working there. Richard Pekarski, the production superintendent in the nitrocellulose department, testified that because of this awareness, the health and safety of employees were of the highest priority and, in his judgment, no expense consistent with a sound profit objective should be spared to ensure a safe work environment. Dr. D. Barrett Heck- ler described in great detail the Employer's programs for providing a healthy and safe workplace. Dr. Heckler, who practiced medicine between 1969 and 1973 and has been with the Employer ever since as plant physician, as- sistant medical director, and since 1981 as medical direc- tor, administers and coordinates the activities of several sections and divisions in the medical department. These include an industrial hygiene section, a toxicology divi- sion , a regulatory compliance division, an information specialist group, and medical practitioners. The primary purpose of his staff is to recognize, evaluate, and correct toxic hazards. Air samples are collected and analyzed regularly in those areas of the plant where a chemical is used that is suspected of having dangerous properties, and on a less routine schedule where nondangerous chemicals are used. The Employer has expressed great concern with providing a safe and secure workplace for all its employees and takes measures to correct hazards if they are discovered, whether attributable to toxic and hazardous chemicals or explosive materials . Testimony of Robert Cruise, the Parlin plant manager, confirms the potentially dangerous conditions and Respondent's ef- forts to ensure a safe work environment. B. Bargaining History Local 271 has been the recognized bargaining repre- sentative since 1945 of the hourly wage-roll employees at the Parlin plant excluding particular categories such as those who are employed in the office, in plant protec- tion, in the medical department, as technicals, and as su- pervisors . The unit is fully described in a series of collec- tive-bargaining agreements between the parties, the most recent of which is for the period 21 March 1984 through 21 March 1986. Although Local 271 is the statutory rep- HERCULES INC. 963 resentative, a practice has developed over the years pur- suant to which Respondent has acknowledged, and ac- cepted, participation by the International in its relations with Local 271 including implementation of the contract. An International representative, most recently Robert Meade, has been utilized by Local 271 to deal with the Employer. Meade's undenied testimony establishes that he has met with representatives of Respondent for sever- al years in processing of grievances, presenting arbitra- tions, and in negotiations . Meade's role as an aide to Local 271 was acknowledged by Howard Spatz, the em- ployees relations manager for Respondent and an admit- ted statutory supervisor. C. Local 271's Request for Access to the Plant and the Employer's Responses 1. The accident The manufacture of nitrocellulose in the dehydration department culminates in a packaging process (referred to as densification), which involves feeding the material along a conveyor, through a hopper, and into barrels or drums . When the dehydration department was rebuilt in 1983, the densification process was made automatic al- though employees were present to monitor the oper- ation . On 21 February an explosion occurred in the line 1 densification building, which resulted in the death of one bargaining unit employee and injury to four others. Richard Whalen, vice president of Local 271 at that time , was notified by phone at his home by the shop steward at approximately 10:30 p.m. Whalen immediately notified Robert Meade and was advised it was the policy of the International to have one of its industrial hygien- ist's make an onsite investigation of the accident. There- fore, on 22 February, Whalen and Meade met with Spatz in order to arrange for such inspection of the premises. z 2. The first request Early in the afternoon of 22 February, Whalen and Meade met with Spatz at the plant and advised him that Thurman Wenzl, an industrial hygenist from the Interna- tional's headquarters, was arriving by plane to investigate the scene of the accident. Spatz replied to the effect that the Employer's policy did not permit an outsider to enter the area and therefore it was doubtful Wenzl would be permitted to make such an investigation, but that if the Union wanted to pursue the matter it should make a formal request. Meade introduced Wenzl to Spatz as the Union's expert investigator and a request was made on behalf of Local 271 for Wenzl to conduct an onsite in- vestigation of the accident scene . Meade noted that the ! There are minor and insubstantial discrepancies concerning whether there were two or three such meetings, whether Meade was present on each occasion, and on the exact language used by the parties. The differ- ences that do exist do not affect the outcome of this case in any respect and need not be resolved . All three witnesses are in agreement regarding the essentials of the conversations and there is no dispute concerning Spatz' reply, which is the predicate for one of the alleged violations inas- much as Spatz read from a prepared statement that was received in evi- dence without objection. Accordingly, unless otherwise noted , the recon- structed events of that day, which was a painful one for all concerned, are based on a composite of the testimony as given by all three witnesses. Union should be allowed to match the Employer's use of an expert. Between the first and second meeting Spatz had con- sulted with Cruise concerning the Union's anticipated re- quest. Cruise decided that Local 271's request for Wenzl to conduct an onsite investigation should be denied. Con- sequently, a written reply was prepared, which was read by Spatz in response to Meade's formal request at the second meeting. The statement reads as follows: The Company is cooperating fully with OSHA to permit required investigation of the site of the in- cident of February 21, 1985. A representative of employees previously designated to accompany an OSHA Compliance Officer has and will accompany the OSHA Officer as he examines the site. As pro- vided in OSHA regulations, this representative is an employee of the Parlin Plant. The Company will also provide all relevant in- formation to the Union that is reasonably necessary for the Union to discharge its duties as bargaining representative . The Company feels, however, that the presence today of non-employee Union officials is not reasonably necessary for the Union to secure the information that the Union is entitled to. When information becomes available as a result of investigation, the Company will meet with repre- sentatives designated by the Local Union to provide all information to which the Union is entitled. Meade's request for a copy of the statement was re- fused by Spatz at which point the meeting terminated. As the participants were leaving, Spatz confided to Whalen that the plant was in turmoil because of the acci- dent and he expressed the hope that they could avoid a fight regarding the request for access by Wenzl. Spartz appealed to Whalen for reconsideration of the request. Whalen agreed to bring Spatz' appeal before the Union's executive board, which was scheduled to meet that evening, and to phone Spatz later with the result. Wha- len's credited testimony is that he did telephone Spatz as arranged and reported that the executive board had de- cided not to pursue, for the present, the request for access. Respondent's contention that the Union thereby "waived any claim for access until it made its subsequent request by letter dated April 24, 1985" (R. Br. 29) is without merit and rejected. In the first place, the request and refusal were accomplished facts, and the legal conse- quences of Respondent's actions were not subject to ad- ditional actions by the Union. Thus, there was nothing for the Union to waive. In the second place, I find that Whalen did not convey an abandonment, relinquishment, or withdrawal of his earlier request, if that is Respond- ent's position. And, finally, in no sense could Walen's re- marks, as a matter of law , be construed as inferring a waiver of statutory rights, which might be conferred under the circumstances of this case. Spatz' testimony differs from that of Whalen's only to the extent that the former recalled Walen stating the Union would not pursue the request because it was sure Respondent would furnish all necessary information. I 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cannot accept Spatz' version because it not only seems unlikely, given the Union's insistence for access earlier in the day and Meade's guidance to Local 271 throughout the day and at the executive board meeting, but also be- cause Respondent never again raised it to the Union or to the Region during the investigation. In a written posi- tion paper to the Region, Respondent states that Spatz was told the executive board met with "Wenzl and Meade and had voted not to press the issue of .. . access to the plant." Further "that the Union would probably be satisfied with the information provided ... " This version is closer to Whalen's testimony and, more significantly, the letter does not assert that the con- versation constituted a waiver. Rather, other legal de- fenses are raised. A waiver of a statutory right cannot rest on such ambiguous, conditional remarks, made in an emotional, highly charged atmosphere, where all parties were seeking to ease the tragic events of the day by a show of gracious behavior. It is unseemly , to say the least, to use Whalen's attempt to soften Spatz' and Re- spondent's burden as the basis for denying the Union and all the employees it represents, a right as paramount as the one in this case. If access is to be denied, it must be for reasons stronger in law than the one premised on Whalen's nighttime phone call. It is a well-established rule that a waiver of a statutory right is not lightly in- ferred. Rather, such waiver will be found only where the Union has, by clear and unmistakable language, ex- pressed a conscious intent to relinquish such rights. See, e.g., Timken Roller Bearing Co. v. NLRB, 325 F.2d 746, 750-751 (6th Cir. 1963), cert. denied 376 U.S. 971 (1964). I find that Whalen's remarks, even under Spatz' version, cannot be so construed. 3. Respondent's accident investigation Respondent immediately commenced its own investi- gation of the accident as did the Occupational Safety and Health Administration (OSHA). The record is rather sparse with respect to the kind of investigation conduct- ed by OSHA and there are almost no details concerning its findings, conclusions, recommendations, or methodol- ogy. There is evidence, however, that an OSHA official did survey the accident site, that Whalen accompanied him and provided some information concerning Re- spondent's operations in the area where the accident oc- curred, to the extent that Whalen had such knowledge. Whalen, in turn, was furnished with reports and log- books that Respondent had given to OSHA. The record does not provide any details concerning the contents of these reports. Nevertheless, Respondent, in its answer and brief, argues for dismissal of the complaint on the ground that the Board proceeding is preempted by OSHA. No au- thority is cited in support. Regardless of the nature or extent of OSHA's investigation, it is a settled proposition that the Board has not ceded to OSHA jurisdiction to decide refusal -to-bargain cases merely because the case implicates health and safety concerns. Nor does OSHA's authority to regulate health and safety in the workplace preempt the field and oust the Board from its jurisdiction to administer Section 8(a)(5) of the Act. NLRB v. Hol- yoke Water Power Co., 778 F.2d 49 fn. 2 (1st Cir. 1985); Plough Inc., 262 NLRB 1095 (1982). Nor does the avail- ability of information through OSHA relieve Respondent of its statutory obligation to provide that information. Colgate-Palmolive Co., 261 NLRB 90, 92 (1982). In no sense then, is there merit to Respondent's argument that whatever rights the Union has to access are to be nulli- fied because OSHA conducted an investigation. Apart from the OSHA investigation, Respondent di- rected its own intensive investigation in order to recon- struct the events that caused the fatal accident. It brought in specialists and experts from its corporate headquarters to work with investigators from the Parlin plant. The scope and nature of that investigation was de- scribed in detail by Richard Pekarski, the superintendent in charge of nitrocellulose production. In this capacity he was responsible for the entire operation of the dehy- dration department. The inquiry into the cause of and measures to prevent future explosions was undertaken in several stages beginning the day following the accident. The first step consisted of an onsite inspection of the physical evidence in the area of the explosion. This phase of the investigation was headed by specialists from Re- spondent's headquarters in Wilmington, Delaware, assist- ed by managerial and technical personnel at the Parlin plant. The investigation team included a metallurgist, en- gineers, and operating supervisors. They examined the area, took photos, and gathered metal samples for exami- nation. Their mission was to determine what had hap- pened at the time of the explosion. In the second step of the investigation the operating officials at Parlin re- viewed the production procedures in an attempt to deter- mine why the accident had happened. The third step was the initiation of a program for the redesign of the de- stroyed production line. Initially, the focus was on creat- ing a "conceptual scope" (Pekarski's words), which then was submitted to top management. On receiving approv- al, Pekarski then assembled a team to implement that concept by actually redesigning the operation and plan- ning its rebuilding. This function was begun on the Sunday following the Thursday explosion. Pekarski de- cided that to accomplish this objective he would assem- ble a group of engineers and operating people who had worked on the "conceptual scope," supplemented by bargaining unit employees who had direct knowledge of production procedure. Pekarski testified that he wanted to involve unit employees for several reasons. First, he was interested in the expertise they could bring to bear based on their work experience. Also, he wanted to use these unit employees as a communication link to the other unit employees. In this respect, he hoped to filter ideas from employees through the committee members and conversely to transmit to the employees as a whole the work that the rebuilding team was doing. In Pekars- ki's words, they were to serve "as a sounding board for all their coworkers to provide input for their concerns and to be heard through them." Pekarski concluded that four employees would be the appropriate number to serve on the rebuilding team. About 1 week following the accident, Pekarski, for the first time, informed Whalen that he intended to utilize bargaining unit employees in the manner just described, HERCULES INC. 965 to which Whalen expressed the thought that the idea was a sound one . Thereafter, Pekarski held a meeting with all the department employees to advise them of the steps being taken to rebuild the destroyed area, including the intention to involve unit employees . Pekarski selected two employees for the committee and he approved of two others who volunteered to serve . These four em- ployees participated in all committee discussions, re- viewed the plans as they were drawn up, and generally had full knowledge of the reconstruction as it pro- gressed . They also helped prepare instructional guides and served in an on-the-job training program on the re- building . The line 1 densification building (the one de- stroyed by the explosion) became operational in June, and line 2, which had been shut down following the ex- plosion, was restarted in April. Although Whalen agreed with Pekarski that the in- volvement of bargaining unit employees in the rebuilding program was desirable , it is certain from Pekarski 's testi- mony alone that the Union neither was consulted, nor was it afforded an opportunity to bargain , about their participation in this endeavor . It was Pekarski alone who decided that employees should participate , he alone de- cided how many should be involved and to what extent, and that there should be one employee from each of the shifts. It was Pekarski who selected the individuals and who approved of the ones who volunteered, and Pe- karski alone directed and controlled the degree of par- ticipation permitted the employees . Furthermore, as noted above, these employees , and not the Union, were used by Pekarski as a communication link to the repre- sented employees. 4. The second request for access and Respondent's reply As described above, toxic fumes are present in the Parlin plant as a normal incident to the production proc- ess, which has prompted Respondent to conduct a safety program , including the monitoring of air samples, to ensure that levels of toxicity do not exceed standards of safety. Prior to the events giving rise to this case, it ap- pears that Local 271 had not requested the opportunity to conduct studies of its own . On 24 April, prior to the completion of the rebuilding effort, Local 271, by its then acting president, Whalen, sent a letter to Robert H. Cruise, the plant manager at Parlin (he apparently is the highest ranking corporate official at that location). The letter, in pertinent part, states as follows: This is to confirm that for the purposes of investi- gating safety and health conditions , ICWU Local 271 has chosen to designate Thurman Wenzl as our representative. Exercising the local union 's right to bargain on working conditions , it is essential that our representative has [sic] access to the plant and be provided with information which Hercules has on safety and health . The local requests access to the Parlin plant by Wenzl, an Industrial Hygenist employed by the Health and Safety Department of the International Chemical Workers Union, in order to investigate the causes of the fatal accident of February 21, 1985 and to evaluate the hazards asso- ciated with the use of the toxic chemicals in other departments. The letter then referred to Respondent's denial of access on 22 February and continued with the following: Prior to resuming production at the soluble nitrocel- lulose packing operation which was destroyed, our local requests that Wenzl be allowed access to evaluate whether changes are necessary due to the accident and whether they have been made. At the same time we would like Wenzl to be able to evalu- ate whether toxic chemicals in other departments are being handled in ways which minimize worker exposure. One of these hazardous chemicals is eth- ylene oxide , which has recently been found to cause leukemia. A second letter also was sent by Whalen to Cruise on 24 April, in which Whalen requested that Respondent fur- nish the Union with a list of toxic materials used at the plant, data obtained by Respondent from its monitoring of such products, analysis of the data , and various other company records relating to employee exposure to toxic fumes and toxic materials. On 8 May, Cruise responded in writing to both of Whalen's letters . With respect to the request for various records (Whalen's second letter), Cruise stated that Re- spondent was compiling those records and would furnish them as soon as possible . However , referring to the OSHA regulations pursuant to which Whalen apparently had made his request , Cruise advised that it would first be necessary for the Union to execute a trade secret agreement , the effect of which is to guarantee against im- proper disclosure by the Union of certain of the informa- tion furnished . In effect, the agreement limits the Union's use of information of a proprietary nature and informa- tion pertaining to employees of a confidential nature. With respect to Whalen 's request for access to the plant by Wenzl , Cruise stated as follows: You have requested access to the plant premises be given to Mr. Thurman Wenzl , and industrial hy- gienist employed by Health and Safety Department of the International Chemical Workers Union, Akron, Ohio, as the person whom Local 271 would like to designate as its representative to investigate safety and health conditions at the plant , and other matters . As stated in the Labor Contract, the Com- pany has the responsibility of making provisions for the safety and health of its employees and determin- ing regulations in those areas to safeguard the inter- est of the Company and its employees . We believe that those provisions have worked well and , there- fore, reject your request to have a non -Hercules employee as the Union 's designated representative. The statement read by Pekarski to the Union on 22 February , his remarks to Whalen that day, and Cruise's letter of 8 May are the only replies made by Respondent, whether oral or in writing , to the Union's requests for access to the plant . No other reasons have ever been given to Local 271 at any time. Nevertheless , Respond- 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent has asserted a variety of grounds in this proceeding for denying Local 27l's chosen safety expert access to conduct an onsite safety and health investigation. In ad- dition to the OSHA preemption defense and the waiver contention described above, Respondent's other reasons, and the evidence relating thereto, are set forth below. D. Respondent's Additional Reasons for Denying Access In a letter to the Regional Office by Respondent's at- torney on 11 July, in reply to the unfair labor practice charge, Respondent reviewed the procedures taken by OSHA to investigate the accident, the fact that Whalen accompanied the OSHA investigator on several occa- sions, and that OSHA had "issued a citation and notice of penalty." It further was claimed that Whalen had been permitted to examine certain employer records, that the OSHA investigator had spoken to unit employees in Whalen's presence, and that employees had been fully in- formed of the results of the investigation by Whalen and through employee participation in the rebuilding com- mittee. The letter concluded with reference to Cruise's letter of 8 May in which he relied on the collective-bar- gaining agreement in rejecting the request for access by quoting section 6 of the agreement entitled "Safety" as follows: a. The company agrees to continue making reasona- ble provisions for the safety and health of its em- ployees, and shall determine regulations covering safety, fire prevention, sanitation, and health which will safeguard the interest of the company and its employees. b. A Safety Committee shall be active in periodic inspections of the plant. One member of the commi- tee shall be furnished by the Union to serve for an indefinite period. The Safety Department shall de- termine the other members as well as the procedure to be followed by the committee. Counsel then asserted that in practice the union member of the Safety Committee always had been an employee in the bargaining unit. Respondent then took the legal position that denial was justified because it had satisfied the Union's request by alternative means, particularly Whalen's alleged satis- faction with the Employer's willingness to share informa- tion obtained in its own investigation of the accident. Additionally, Respondent argued it has supplied more than sufficient information about the accident in specific and elaborate detail and "the local union has expressed confidence and satisfaction with this information." Final- ly, it was contended that Local 271 did not sincerely want access, but rather the case really involved a dis- guised request for information by the International, which as a stranger to the relationship it was not entitled to make. Counsel viewed the entire matter as a ploy by the International to intrude on the relationship between Local 271 and Respondent for the purpose of satisfying International needs and concerns. With respect to the re- quest for access to measure the levels of toxic chemicals, counsel advised that Respondent would supply informa- tion to Local 271 on execution of the trade secret agree- ment, which would obviate any need for a plant tour. Thus, Respondent 's letter appears to suggest that Local 271's requests for access were not made in good faith and therefore could be denied for that reason alone. Respondent's brief alludes to such position when it states the issues in the case to be "whether a company, faced with a demand for access based on International Union policy, must give a nonemployee access to its proprietary information and the right to interfere with its operations when the Union has made no attempt whatsoever to sat- isfy its informational needs through other less intrusive means." (R . Br. p. 36 .) Respondent does not expand on the purported significance of "International Union policy," neither the brief nor the evidence specifically fo- cused on this contention, and it has not been catalogued as a separate justification , among the many raised , for de- nying access. Be that as it may, and to the extent Re- spondent asserts the International 's role as somehow di- minishing the force of Local 271's request, thereby form- ing the basis of a defense to the complaint, I find such claim to be without substantial basis in fact and devoid of merit. It is abundantly clear that all requests for access were made by and on behalf of Local 271 in its representative capacity and for the benefit of the Local 271 bargaining unit, and not until it framed a reply to this charge did Respondent indicate a contrary belief. There is no evi- dence that Local 271 was acting as a surrogate for the International or that its requests were not made in good faith. The assistance rendered by the International not only did not conflict with, or derogate from, Local 27l's representative status, it was, under the circumstances of this case, entirely consistent with the historic pattern of bargaining followed by the parties. At the hearing, and in its brief, Respondent advanced several other grounds for denying access, and we will turn to those assertions.3 Cruise, who was responsible for the decision not to permit access at the time of the acci- dent, testified that Respondent 's primary concern was to safeguard the confidential new technology that Respond- ent had developed. He feared that if a nonemployee had unhindered access through the plant he would have an opportunity to observe, learn, and disclose the secret processes used and Respondent's competitive edge would be compromised. Cruise did not explain, however, what process, secret or otherwise, could have been observed following the explosion and destruction of the area. Cruise gave as his second reason for denying access after the accident that there was no need for the Union to have its own expert conduct an onsite inspection be- cause the results of the Respondent's accident investiga- tion by its experts would have been made available to the Union. This alternative source would have been far more useful for the Union's purposes, according to Cruise , especially because the accident investigator the Union intended to use was an industrial hygenist, a 3 I have already rejected, as lacking in merit , the following conten- tions waiver or abandonment of a right to access, preemption by or de- ferral to OSHA, and the notion that Local 271 was "fronting" for the International. HERCULES INC. 967 person not qualified to investigate explosions of the type involved and who would not have made a contribution to the investigation. Cruise's opinion was corroborated by Dr. Heckler-who testified that Wenz1 did not possess the expertise to investigate a nitrocellulose explosion. However, Cruise admitted that he was without any knowledge at all of Wenzl's expertise and training on 22 February, and Dr. Heckler admitted that he never con- veyed his opinion of Wenzl to Cruise. Cruise also testified regarding the reasons that prompt- ed his letter of 8 May, wherein he refused access to the Union in order to examine the nitrocellulose packing area after it had been rebuilt. Cruise reiterated that his main concern was the proprietary interest stemming from the confidential nature of the Employer's produc- tion process. Again, Cruise noted the existence of an al- ternative source as another reason for his letter. Here, he had reference to the presence on the rebuilding commit- tee of bargaining unit employees as described above. Apart from the fact that these employees were selected by Respondent to serve on the committee, that they were chosen without any participation by the Union, that their roles on the committee were determined by Respondent, and that they did not function until the final stage of the planning program, there is no evidence whatsoever that these employees reported to the Union or transmitted. to it whatever information they were al- lowed to obtain. Nor did Respondent offer evidence that the employees could have disclosed any evidence they obtained in view of the fact that they had signed secrecy agreements that presumably forbade such disclosure.4 Clearly, if Wenzl (an outsider) could not view the proc- ess because it was a trade secret, then the employees were barred by the secrecy agreements they had been re- quired to execute as a condition of employment, from re- vealing any information about that very process to Wenzl. Furthermore, it is beyond doubt that these employees were not union designees, that they did not communicate to the Union concerning their participation, that they were not chosen for the purpose of communicating to the Union, and that they were selected by Respondent without any union participation. Finally, these employees had no demonstrated training, experience, background, or special expertise in the area of safety. Nor did Re- spondent place them on the committee because it consid- ered them particularly knowledgeable about safety mat- ters. Rather Pekarski selected them because of job, not safety experience. Thus, I find these employees were not ' To protect the confidentiality of its processes, Respondent requires trade secret agreements from contractors, their employees and from its own employees as well who must execute such an, agreement as a condi- tion of-employment . Essentially, these - secrecy agreements bind the signa- tories not to reveal production information. Although the Union was re- quested to execute a similar type agreement as a condition of receiving information requested in its letter of 24 April, at no time did Respondent request such an agreement from Wenzl as a condition of entry into the plant to inspect the newly rebuilt dehydration areas or to enter the plant for the purpose of monitoring air samples in order to test for toxicity or other hazardous materials . As discussed below, this failure by Respondent is a factor in determining where to strike the balance between protecting Respondent 's proprietary rights and a collective -bargaining representa- tive's right to access. qualified to investigate, evaluate, and analyze safety mat- ters. Absent such fording, their presence could not, under any circumstance, allow the Union to adequately repre- sent the bargaining unit, nor do they constitute such, al- ternative means as to conclude that Respondent has ful- filled its statutory obligations to the Union. Holyoke Water Power Co., supra. Accordingly, for the foregoing reasons, Respondent has failed to support its contention that employee pres- ence on the rebuilding committee was a reasonable and satisfactory alternative to an onsite live inspection by Wenzl, be it for the purpose of investigating the causes of the accident or of inspecting the rebuilt dehydration department to determine whether the health- and safety of employees was as secure as possible. As noted, Respondent's own investigation, which of course, included firsthand, onsite inspection and examina- tion of the accident area, also is urged as a satisfactory alternative. In effect, Respondent would deny to, the Union that which it deemed essential for itself. It defies all reason to maintain that the cause of the accident could be analyzed without a physical examination of the premises , and indeed Respondent 's investigation included an onsite inspection. Although witness reports , produc- tion reports, and operating manuals no doubt are quite valuable in compiling a comprehensive investigation, these are independent of, and supplementary to, a site in- spection, as Respondent's own evidence establishes. Wenzl's testimony simply confirms the obvious that whether investigating the accident or inspecting for chemical pollutants, there is no adequate substitute for the investigator's own direct observation. He clearly de- scribed the shortcomings of depending on "filtered" ver- sions and secondhand reports and the need to verify in- formation furnished by others as well as to verify com- pliance with operating manuals. I find this testimony consistent with sound and basic principles of health and safety investigations, in accord with common sense, and entirely credible. Therefore, access to the site as an essential aspect of a sound, fair, and complete -investigation, has been over- whelmingly demonstrated and the only question remain- ing is whether the Union in this case lawfully was denied such access. That ultimate issue will be, discussed below, but for present purposes I find without merit the bare claim that' the Union could have had a thorough, com- plete, meaningful, and proper investigation without an in- spection of the accident site by its own investigator and that the reports of investigation made by others provides a satisfactory and adequate alternative. Furthermore, and at the very least, fairness dictates that the Union's own investigator is entitled to access to verify the accuracy and reliability of Respondent's investigation. Ina similar context, it has been observed that "the proposition that a union must rely on an employer's good intentions con- cerning the vital question of the health and safety of rep- resented employees seems patently fallacious." Oil Work- ers Local 6-75 v. NLRB, 711 F.2d 348 at 361 (D.C. Cir. 1983). Respondent advances a similar argument concerning the request of 24 April to permit access to measure levels 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of toxicity in the air, and I reject it for the same reason- ing. As set forth above, Respondent routinely conducts air sampling and prepares reports analyzing its findings. These reports, Respondent argues, are expertly prepared and would have provided the Union with an alternative and even better source of information than anything ob- tainable through its own sampling and analysis . This ar- gument begs the question . Doubtless, Respondent would be overjoyed if the Union would be compelled to rely exclusively on the results of the Respondent 's investiga- tion . It is clear from Dr. Heckler's testimony that the sampling process involves a certain exercise of discretion and independent judgment by the investigator as to the time and place for monitoring the air. The potential for controlling the results by controlling the investigator simply is so obvious that we need not dwell on the claim that Respondent 's air sampling reports are a viable alter- native to the Union's independent inspection . It is ele- mentary that here, as with the accident investigation, a verifiable, fair, accurate , and complete investigation ne- cessitates the Union having access to conduct its own air monitoring . The need for such live study by the Union is compelling. One of the prongs to Respondent' s arguments that al- ternative means existed for obtaining information about the accident is the assertion that Wenzl was not a trained accident investigator and his efforts would have been meaningless . Respondent also relies on this assertion as a separate and independent reason for denying access to Wenzl. The record shows that Wenzl has been employed as an industrial hygienist for the International since Janu- ary 1984. He has a Masters Degree in Health Sciences in Occupational Safety and Health from Johns Hopkins School of Hygiene and Public Health and a Bachelor of Science Degree in Mathematics and Physics from Rense- lear Polytechnic Institute . He is a member of the Ameri- can Industrial Hygiene Association and the American Public Health Association and has passed the first part of a certification process required for becoming a certified Industrial Hygienist . He has made plant tours in connec- tion with accidents and potential chemical exposures. Al- though he has not previously investigated an accident re- sulting from an explosion , he has investigated other in- dustrial accidents at Armour Pharmaceuticals and at a mine in eastern Tennessee . In addition , he had investigat- ed traumatic injuries during the period of his employ- ment as a longshoreman at the Baltimore waterfront. He had conducted tours in seven plants and prepared writ- ten reports dealing with chemicals and other hazardous matters in the workplace. While working on the Balti- more docks in 1979 he was a founder and participant in an ad hoc committee known as the Maryland Committee on Occupational Safety and Health, an organization con- cerned with worker safety and worker education in safety and health. Dr. Heckler gave his opinion that an industrial hygien- ist was unqualified to investigate explosions caused by ni- trocellulose of the type used at the Respondent's plant. However, Dr. Heckler further testified that this opinion never was communicated to Cruise and it was not a reason relied on by Cruise when access was denied to Wenzl on the day of the accident or on the latter occa- sion when the Union asked for permission to examine the rebuilt plant . Moreover, while asserting Wenzl's alleged lack of qualifications to deny access to him, Respondent claims that the clearly unqualified employees on the re- building committee and Whalen, who had no expertise in accident investigations or industrial hygiene or worker safety programs but who nevertheless did accompany the OSHA investigator, were satisfactory alternatives to Wenzl's requested visits. I conclude that Wenzl was a qualified investigator to perform the tasks requested by the Union, that not Whalen or any other unit employee was shown to be anywhere near as qualified in the field of worker health and safety, that the Union presented Wenzl in good faith and was fully justified in treating him as its expert, and that Respondent 's belated attempt to justify denial of access on Wenzl's purported lack of qualifications is a flimsy pretext. It is sad to note that despite the best ef- forts of Respondent's experts to provide a safe work- place there was a fatal explosion, and it ill behooves Re- spondent to deny the Union an opportunity to contribute to a safety program on the ground that the Union's expert would impede such efforts. Concerning his refusal to allow access to measure toxic substances , Cruise again pointed to the proprietary nature of the operation as the basic reason for not per- mitting Wenzl to enter the plant, and noted that the Union never executed the trade secret agreement prof- fered to it in response to the request to be furnished writ- ten information . Cruise also claimed that if Wenzl had been allowed to tour the plant he would have required an escort at a prohibitive cost to Respondent . However, Cruise without explanation , limited this claim to Wenzl's request to measure toxic substances but not to the re- quest that he examine the accident area . Furthermore, he conceded that Respondent never calculated the cost of an escort, nor did he know what additional expenses would have been entailed . Thus, Cruise's claim of pro- hibitive cost is without any evidentiary support. Nor was this claim ever communicated to the Union, a failing that of course precluded any effort on the Union's part to meet legitimate concerns that might have existed in this area . Accordingly, I find that cost was not an impedi- ment to complying with the Union's requests for access and it is rejected as a legitimate reason. Although Cruise made the decision not to permit Wenzl access to the plant, Respondent as noted , offered evidence through other witnesses as well in support of several additional reasons for Cruise's decisions, none of which, however, were communicated to Cruise prior to his decisionmaking. Pekarski testified that permitting a nonemployee to make a live inspection of the nitrocellu- lose packing area after it had been rebuilt would have interfered with production. Pekarski explained that the packing process operated on a 24-hour basis by remote control. Because no employees entered the building while the nitrocellulose was processed for packing, it would have been virtually impossible for a nonemployee to enter the area and examine the process for an analysis of its safety features . However , Pekarski also testified that there are periodic shutdowns when employees are HERCULES INC. present in the production area . Thus, there are planned shutdowns twice a day for 2-hour periods in order to have the area completely washed. During these 4 hours various numbers of employees and supervisors are present. There are other planned shutdowns for mainte- nance every 3 weeks lasting from 8 to 16 hours . During these periods of time anywhere from 30 to 50 employees are present including Pekarski and a varying number of supervisors. Pekarski also testified that during the peri- ods when the process is not in operation, outside con- tractors are present albeit, as observed above they, and at times their employees , must sign a trade secret agree- ment, an opportunity not afforded to the Union. Consequently, Respondent's own evidence contradicts the assertion that a union representative would have interfered with production if he was given access to the area rebuilt after the explosion in order to make an inde- pendent, onsite, safety analysis and inspection. It is un- warranted to hold that Wenzl's presence during the shut- down periods would have been any more disruptive than the presence of employees and supervisors , let alone out- side contractors and their employees. Respondent con- tends that these last individuals were necessary for Re- spondent's production purposes from which, presumably, an inference is sought that union concern with health and safety of employees is not related to production or is of lesser concern to the Union than to the Employer. Common sense and the Board have told us otherwise. "Few matters can be of greater legitimate concern to in- dividuals in the workplace, and thus to the bargaining agent representing them , than exposure to conditions po- tentially threatening their health, well being or their very lives." Minnesota Mining & Mfg. Co., 261 NLRB 27 at 29 (1982). For the foregoing reasons, I find Respondent has failed to offer convincing evidence to support its claim that it rejected the Union's request of 24 April for access to the rebuilt area because such access would have interfered with production, and that "reason" is rejected. Finally, by not informing the Union of the "reason," it is ques- tionable that it now is advanced in good faith. Had it been a genuine concern to Respondent, it would have been, consistent with bargaining obligations, presented to the Union and discussions could have been had to allevi- ate or minimize any real problem. This record therefore leaves no basis for concluding that Wenzl 's visit during planned shutdowns at least would not have caused any disruption whatsoever to Respondent's normal oper- ations. Discussion and Final Conclusions The Union requested access to Respondent's premises in order to conduct live studies concerning the gravest of matters imaginable to the employees it represents, namely, the cause and prevention of occupational injuries and work-related deaths , and an atmosphere free of haz- ardous and toxic fumes . The information sought by such studies so obviously is relevant and necessary for the Union to properly function in its role as the bargaining representative of the unit employees that it cannot be, and Respondent does not, argue otherwise . See Minneso- ta Mining & Mfg. Co., supra . However, although such 969 health and safety information must be provided, a union representative does not have an absolute right to enter an employer's premises to obtain that information. Rather, under the rule announced by the Board in Holyoke Water Power Co., 273 NLRB 1369 (1985), that right of the union is qualified in the sense that it is to be balanced against the employer's right to control its property. The Board, in Holyoke, id. at 1370, announced that when re- sponsible representation by the union requires that it have access to the employer's property, i.e., there is no alternative means to achieve that end, it would follow the balancing test applied by the Supreme Court in NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), to accommodate the rights of both parties "with as little de- struction of one as is consistent with the maintenance of the other." This case involves the type of situation where, as the Court observed, the door should not be either "always open or always closed." Id. at 112. Thus, it is settled that relevance of, and need for, the information does not translate into an absolute or unques- tioned right to access. On the other hand, it is equally clear that, circumstances permitting, the Union does have a statutory right to invade Respondent's property rights in order to obtain live and direct information of the kind involved in this case and "that property rights alone will not suffice as a reason for denial of rights guaranteed under the Act." Fafnir Bearing Co., 146 NLRB 1582, 1586 (1964), a case on which the Board rested its Holyoke decision. It should be observed that the Board's Holyoke deci- sion has been enforced in NLRB v. Holyoke Water Power Co., 778 F.2d 49 (1st Cir. 1985). The court agreed with the Board's conclusion that under the circumstances of that case the employer was not justified in denying access to a union industrial hygienist in order to measure the noise level in a fan room. Such information had a re- lationship to health and safety conditions and as such were terms and conditions of employment. Under the circumstances, the employer's property rights were out- weighed by the need of the union expert to have reason- able access to conduct those studies. The court, howev- er, questioned the Board's adoption of the Babcock & Wilcox balancing test because conceptually such test is pertinent to a request for access to permit a union agent to conduct an organizing drive among the employees, conduct protected by Section 8(a)(1) of the Act. By its very nature such activity has a likelihood of disrupting the employer's operations. The Court suggested that a better test is the one used by the Board prior to Holyoke, which treated requests for access to obtain health and safety information as requests for information arising under Sections 8(a)(5) and 8(d) of the Act, which sec- tions impose an affirmative duty on the employer to fur- nish such information if it is necessary or relevant to the Union's role as bargaining representative (this decision, of course, will apply the test enunciated by the Board). Nevertheless, the Court concluded that under either test the refusal to grant access to the industrial hygienist to make the health and safety live study constituted a viola- tion of the Act because it viewed the information that could only have been acquired through access as envel- 970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD oping a substantial interest while the employer' s interest in denying such access was insignificant . It is noteworthy that the employer was charged with the task of demon- strating that its property interest outweighed the union's necessity for access . Accord: Fafnir Bearing Co. v. NLRB, 362 F.2d 716 (2d Cir. 1966). The Board's test requires that each case be carefully analyzed to determine whether it is reasonable to require access, thereby forcing a commensurate limitation on the employer's property rights . To accommodate those rele- vant interests it is necessary to assess a variety of factors present in each given context because the "locus of ac- commodation . . . may fall at differing points along the spectrum depending on the nature and strength of the re- spective Section 7 rights and property rights asserted in any given context." Hudgens v. NLRB, 424 U.S. 507, 522 (1976). Considering the circumstances in any given case, the extent of the intrusion on the private property is bal- anced against the nature of the statutory right involved. When there is a lesser expectation of preserving the property right, or when the statutory right pursued is substantial or would involve only a minimal intrusion on their property right, the need to protect the property right correspondingly is less stringent . Thus, in the Hol- yoke case the Board rejected the employer's assertion that its right to control its private property should pre- vail because the employer did not demonstrate compel- ling reasons to overcome the union 's right to obtain health and safety information , a matter of great concern to the represented employees . Applicable law requires that we evaluate for their relative weight such factors as: the availability of alternative means to the union to obtain information other than through an invasion of the property, the nature of the employer's operation, the impact of access on production and discipline , the extent to which nonemployees are permitted to enter on private property, the nature of the information sought as a result of the access request, and the location on the property where the exercise of the protected activity will occur. Finally, as already observed , in arriving at the balance, the Board and the courts have made plain it is the em- ployer's obligation to demonstrate those factors that would support a conclusion that the property right is paramount to the union's right of reasonable access for obtaining relevant and necessary information. We turn then to application of the foregoing rules of law to the instant case . The Union requested access for its industrial hygienist for three specific purposes: (1) to investigate the fatal explosion , (2) to inspect the plant after it was rebuilt to determine whether there was po- tential for future accidents , and (3) to sample the air in order to test for the presence of toxic and hazardous sub- stances including known carcinogenic materials. Al- though Respondent argues that the Union had satisfac- tory alternatives to live, onsite inspections by the indus- trial hygienist, I have already concluded that this conten- tion is fatally flawed . As found above , there is no evi- dence at all that any unit employee was anywhere near as qualified as Wenzl to conduct the onsite inspections requested or that they would even have been permitted to do so. Whether Respondent's experts were more qualified than Wenzl is not relevant to this issue. The simple fact is that not one employee was shown to be equal to Wenzl in his field of expertise. Wenzl's presence to conduct these live studies unquestionably afforded the Union the opportunity to have its own most expert anal- ysis. Respondent points to no authority or offers any evi- dence that employee observation while at work can sub- stitute for the industrial hygienist's visit for the purposes requested here . All authority is to the contrary. In Hol- yoke, the Board concluded that a live inspection by an outside expert was necessary to measure noise levels cre- ated by a fan. In ASARCO Inc., 276 NLRB 1367 (1985), the Board found that it was essential for the union's in- dustrial hygienist to have access to a mine in order to in- vestigate a fatal accident . In National Broadcasting Co., 276 NLRB 118 (1985), the Board concluded that the union was entitled to have a nonemployee union agent visit a broadcast facility in order to determine if nonunit employees were performing bargaining unit work, an issue that related to a pending grievance . And in Fafnir Bearing Co., 146 NLRB 1582 (1964), enfd. 362 F.2d 716 (2d Cir. 1966), the Board concluded that in preparing for a grievance, the union 's need to have its own expert con- duct a timestudy overcame the employer's property rights . The employer's assertion that the timestudy pre- pared by its industrial engineers was a sufficient alterna- tive was rejected because this method would have denied the union a realistic opportunity to assess the va- lidity of the furnished information particularly as the compilation of that data involved subjective variables. These cases fairly dictate a similar result here. Plant visits by the Union's chosen expert is at least as vital under the facts of the instant case as it was found to be in the cases cited . Indeed, if there was an absence of guiding precedent , it would require tortured reasoning to conclude otherwise, so compelling is the Union's right to conduct studies of health and safety problems by its own trained expert in whom it has confidence. I also have concluded previously that none of the other alternatives proposed by Respondent , in any sense, were equivalent to a plant visit by the Union's expert in- dustrial hygienist . The Union is not obligated to rely solely on reports and information obtained by others. It is entitled to its own independent examination of the fa- cilities and this entitlement is unrelated to the Respond- ent's contention that its own studies and examinations are performed with such accuracy and expertise that no in- dependent verification is required . Such position amounts to an absolute, closed-door policy and renders irrelevant the balancing test that is required to be done. Moreover, it would appear that the circumstances create a presump- tion not only of relevancy and need , but of access as well. I turn now to Respondent's final argument that its pro- prietary interest and the need to protect the secrecy of its operation are paramount to the Union's need for first- hand information and justify exclusion of the Union. Whatever appeal that contention arguably might have, fades in face of the fact that Respondent does not main- tain or implement an absolute exclusionary policy in order to assure secrecy of its operations, but indeed in- HERCULES INC. 971 vites nonemployees on to its premises . It is evident that nonemployee contractors and their employers are afford- ed access constantly subject only to the condition that they execute trade secret agreements , a requirement also imposed on all its own employees as well . Consequently, Respondent's claim of exclusion is qualified by an easily met condition.6 However, the condition for access that it readily affords to other nonemployees and employees was not tendered to the Union . It appears from that fact alone that Respondent's secrecy argument is disingen- uous, particularly as this claim , like all its others, never was presented to the Union as a basis for denying access so that the parties could at least seek to reach an accom- modation of their conflicting interests . I am confirmed in this conclusion by the further fact that following the ex- plosion and the total shutdown of operations, it is highly unlikely , if not altogether improbable, that a visit by Wenzl possibly could have compromised any trade se- crets at all . Therefore , although the Respondent has an interest in protecting its property rights from unauthor- ized disclosure , at the very least it could have obtained such protection from the Union in the same manner as it does with other nonemployees. Having concluded that no means other than access exist for the Union to responsibly and effectively repre- sent the unit employees and that the need for access under the circumstances present here is of the highest magnitude , because it relates to the most vital terms and conditions of employment, it is incumbent on Respond- ent to demonstrate that its proprietary interests outweigh these compelling union interests in order to justify a denial of access . Respondent has failed to meet this re- quirement, and indeed has demonstrated that its proprie- tary interests are relatively slight when compared to the Union's entitlement to access. Thus, Respondent has failed to establish that access by the industrial hygienist (subject to execution of a trade secret agreement if nec- essary) would have compromised its trade secrets, or that his presence would have disrupted production or discipline, or would have interfered in any substantial way with normal operations. The various reasons assert- ed to justify denial not only were not presented to the Union, but, more importantly , they are insubstantial whether considered singly or in combination. To summa- rize, Respondent has failed to substantiate the following reasons advanced as overcoming the Union 's entitlement to access ; (1) that the Union waived its right to access; (2) that the Union withdrew its request ; (3) that the entire matter should be deferred to OSHA ; (4) that the Union's request for access was improper because it acted as surrogate for the International; (5) that access would have jeopardized trade secrets or other proprietary inter- ests; (6) that a visit by the Union's representative would have created excessive cost ; (7) that Wenzl was not qualified as an accident investigator ; and (8) that access The General Counsel also argues that Respondent breached its "ex- clusionary rule" by allowing officials of unions, including Meade, to visit the plant area. Respondent maintains that such visits did not encompass secret operations, but it is not clear whether they were denied entry into a restricted area or merely had no need to extend their visits to such places. In light of my other findings I do not resolve this issue. would have resulted in production interference or would have been a burden on Respondent 's operations. This record leaves no doubt that the investigations and inspections requested by the Union were relevant and necessary to its performance as the collective-bargaining representative and would have facilitated the collective- bargaining process . It also is established that the informa- tion obtainable by these visits was not available through any alternative means and that Respondent's refusals to permit access were not premised on any reasonable or le- gitimate basis but arbitrarily were presented to the Union in furtherance of a "closed door" policy . Therefore, I find , that the refusals in this case were unreasonable and had an adverse impact on the Union 's ability to function as a collective-bargaining representative , and accordingly that Respondent has violated Section 8(a)(5) and (1) of the Act as alleged in the complaint. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 271 and the International are labor organiza- tion within the meaning of Section 2(5) of the Act. 3. The following employees of Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All hourly wage roll employees of the Employer at its plant in Parlin, New Jersey excluding the follow- ing: office employees, employees of the plant pro- tection force, employees of the medical department, employees whose work is technical , salaried em- ployees, hourly wage roll employees in the power department, guards and supervisors as defined in the Act. 4. At all times material herein Local 271 has been the exclusive bargaining representative of the employees in the aforesaid appropriate unit within the meaning of Sec- tion 9(a) of the Act. 5. Respondent has refused to bargain collectively with Local 271 as the representative of the employees in the aforesaid unit by refusing to grant requests for access to its Parlin, New Jersey facility in order to allow Local 271's representatives to investigate industrial accidents, to conduct health and safety inspections , and to conduct tests for determining the presence of hazardous or toxic fumes. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and take certain af- firmative action designed to effectuate the policies of the Act. Because Respondent's denial of access was not predicated on even a colorable claim of business necessi- ty, but rather was in furtherance of an unalterable 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "closed door" policy, it shall be required to grant re- quests for access to Local 271's chosen representatives (for health and safety purposes described above) without limitation or condition , with but one exception . Respond- ent has demonstrated a proprietary interest in securing its secret production does require employees and nonem- ployees alike, to execute a trade secret agreement. How- ever, it appears that the need for such security does not extend to the entire plant . The boundaries of such areas can best be determined in the compliance stage and when access is requested to those sections of the plant, it shall be conditioned on execution by Local 271 of a trade secret agreement generally utilized by the Re- spondent when access is given to nonemployees. The General Counsel has requested that any Order that issues include a visitatorial clause, which would au- thorize the Board to engage in discovery pursuant to the Federal Rules of Civil Procedure. Such visitatorial pro- tection might be appropriate in cases remedying discrimi- natory practices where it is necessary to determine back- pay and reinstatement rights . However, the Board al- ready had denied a request for such remedy in a refusal- to-bargain case (failing to bargain over effects on em- ployees of the closing of a facility) even though a back- pay award was imposed . O. L. Willis, Inc., 278 NLRB 203 (1986). A fortiori, it is not appropriate here. Accord- ingly, and because the arguments of the General Counsel are inapplicable to the violation found in this case, I con- clude that it is not necessary or desirable to provide for the type of discovery proceedings envisioned by the General Counsel's request . Compliance with the recom- mended Order can be determined without resort to the types of books, records, and affidavits, generally avail- able by a discovery order. The General Counsel's re- quest is rejected and I shall provide for the remedy usu- ally imposed by the Board in cases of this kind. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed6 a 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 ORDER The Respondent, Hercules Incorporated , Parlin, New Jersey, its officers, agents, successors , and assigns, shall 1. Cease and desist from (a) Refusing to bargain with the International Chemi- cal Workers Union Local 271, AFL-CIO, by refusing to grant Local 271's requests for access to its Parlin, New Jersey facility in order to allow Local 27l's representa- tives to investigate industrial accidents and to conduct health and safety inspections , and to conduct tests for de- termining the presence of hazardous or toxic fumes. (b) In any like or related manner interfering with, re- straining , or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On Local 27l 's request, grant access to its Parlin, New Jersey facility in order to allow Local 27l' s repre- sentatives to investigate industrial accidents , to conduct health and safety inspections , and to conduct tests for de- termining the presence of hazardous or toxic fumes. (b) Post at its Parlin , New Jersey facility copies of the attached notice marked "Appendix."7 Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Respondent's au- thorized representative , shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered , defaced , or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. Board and all objections to them shall be deemed waived for all pur- Poses. 7 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."