Asarco, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 1367 (N.L.R.B. 1985)

ASARCO, INC.
ASARCO, Incorporated, Tennessee Mines Division
and International Chemical Workers Union and
Local 700. Case 10-CA-20380
30 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
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,
and conclusions and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, ASARCO,
Incorporated, Tennessee Mines Division, Mascot,
Tennessee, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
i The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties.
Gaye Nell Hymon, Esq ., for the General Counsel.
Wheeler Rosenbalm , Esq., of Knoxville , Tennessee, for
the Respondent.
Russell M. Pry, Esq., of Akron , Ohio, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge.
This case was tried at Knoxville , Tennessee , on Decem-
ber 4 , 1984.' The charge was filed on August 8 by Inter-
national Chemical Workers Union and Local 700 (the
International and the Local , respectively , and jointly the
Union). The complaint in the case issued on September
11, alleging violations of Section 8(a)(5) and ( 1) of the
National Labor Relations Act, by ASARCO , Incorporat-
ed, Tennessee Mines Division (Respondent or the Com-
pany). The issue presented is whether Respondent re-
fused to bargain in good faith with the Union by denying
mine access to the Union's selected industrial hygienist
for the purpose of investigating a fatal accident to an em-
ployee, and by refusing the Union 's request for copies of
photographs of the accident site and Respondent 's inter-
nal report concerning the accident.
On the entire record , including my observation of the
demeanor of the witnesses , and after due consideration of
the oral arguments of the General Counsel and Respond-
ent as well as the briefs filed by the Union and Respond-
ent, I make the following
3 All dates are in 1984 unless otherwise stated
FINDINGS OF FACT
1. JURISDICTION
1367
Respondent is a New Jersey corporation with an office
and place of business located at Mascot, Tennessee,
where it is engaged in the mining and processing of zinc.
Respondent, during the calendar year preceding issuance
of the complaint, sold and shipped from its Mascot, Ten-
nessee, mine products valued in excess of $50,000 direct-
ly to customers located outside the State of Tennessee.
The complaint alleges, Respondent's answer admits, and
I find that Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that the International and the Local are each labor orga-
nizations within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The facts in this case are not in significant dispute.
The Union is the collective-bargaining representative of
Respondent's employees in the following unit admitted
by Respondent to be appropriate for collective-bargain-
ing purposes:
All hourly and day rate employees of Respondent
at its Coy, Immel, and Young zinc mines and the
zinc mill in Knox and Johnson Counties in Tennes-
see, and the by-product department (Mascot).
Respondent admits that it is party to a collective-bar-
gaining agreement with the Union covering employees in
the above-specified unit and effective from April 1, 1982,
through March 31, 1985. Under article XV of the agree-
ment, the Union agreed "to cooperate and help manage-
ment in the promotion of safety and the enforcement of
safety rules and regulations." Further, under the same ar-
ticle, a safety committee was established to "make rec-
ommendations to management on accident prevention."
The committee was composed of two employees from
the Union and two from management.
On July 31, bargaining unit employee Wade Field
drove a tractor into a "drift" or shaft which was appar-
ently unfamiliar to him in Respondent's Young mine.
The drift or shaft ended in an abrupt dropoff of about 30
feet. Field drove off the dropoff and sustained injuries
which resulted in his death in the early morning hours of
August 1, shortly after the accident was discovered. It is
undisputed that Respondent undertook immediate steps
to investigate the accident. Respondent Safety Director
Donald Ledbetter in the early morning of August 1, con-
tacted the representative of the Mine Safety and Health
Administration (MSHA) responsible for the Young mine,
and arranged for an investigation to begin that morning.
The investigation included viewing the site of the acci-
dent as well as interviews of supervisors and employees
in the mine where the accident took place. It is undis-
276 NLRB No. 155
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
puted that union members Dennis Gann, Ray Gann, and
Thales Miller participated in one phase or another of the
investigation, including examination of the accident site
and the tractor which Field had driven.
The record reflects that Ray Gann was president of
the Union and that Miller and Dennis Gann were mem-
bers of the safety committee (walk-around delegates)
provided for under the bargaining agreement. Each had
in excess of 20 years' experience in mine work. Further,
all three had had years of mine safety training conducted
by the Employer. However, it does not appear that any
had received any specialized training in accident investi-
gation.
Following completion of the onsite examination which
included the taking of photographs by Respondent, the
MSHA representative authorized Respondent on August
1, to "clean up" the site and remove the tractor to an
underground maintenance area.
The International maintained a policy of investigating
any fatalities or serious accidents involving members of
local unions. To this end, it established and maintained a
health and safety department fully staffed with four in-
dustrial hygienists, three health educators, and two cleri-
cals. On August 1. Jerry Levine, a representative of the
International responsible for servicing the Local Union,
received word of the field accident. Consistent with the
International's policy, he contacted the health and safety
department. Thurman Wenzl, an industrial hygienist, was
assigned to the International to investigate the accident.
Wenzi had a master's degree in health sciences from
John Hopkins University but, at the time, had not com-
pleted the certification process for becoming a certified
industrial hygienist. Nevertheless, he had previously con-
ducted several plant safety tours for the International.
Wenzi had extensive industrial accident investigation ex-
perience although he had never investigated an under-
ground mine accident.
Wenzi arrived in Tennessee and met with Levine and
interviewed some of the bargaining unit employees re-
garding the accident on August 2. Prior to his arrival,
Levine contacted Mike Langley, assistant director for
personnel at Respondent, advised him that Wenzl was
coming in that day, and requested permission for Wenzi
to enter the mine to investigate the accident. Langley de-
murred saying he would have to check with higher au-
thority. Later the same day, however, Langley tele-
phoned Levine and told him Wenzl would not be al-
lowed to enter the mine. Still later on August 2, Levine
arranged with Langley to have a meeting between union
representatives and officials for Respondent in the late
morning of August 3.
The meeting was held as scheduled with Levine,
Wenzl, and Ray Gann representing the Union and
Robert Gordon, Respondent's Tennessee mines division
manager; Ledbetter; Jim Bales, Respondent's Tennessee
chairman ; Don White, Respondent's assistant general
manager; and Don Steinhoff, Respondent's mine manager
of the Young mine, all representing Respondent. It is un-
disputed that Levine repeated at this meeting the Union's
request for access by Wenzi to the mine. Gordon denied
the request. During the course of ensuing discussions, the
Union's representatives were told that photographs of
the site had been taken by Respondent 's representatives
and that Respondent was preparing an internal report on
the accident and its investigation . Levine and Wenzl re-
quested copies of the photographs and the report. To the
date of the hearing, Respondent has failed to provide the
Union with either the photographs or the report, al-
though Respondent 's representatives did provide the
Union's representatives at the August 3 meeting with in-
formation about the accident and answered questions re-
garding the accident . Wenzi was shown a diagram or
map of the accident site and its approaches . Moreover,
the Union subsequently received a copy of the MSHA
report on the accident dated August 28. While MSHA
inspectors had been provided copies of the photographs
of the accident site taken by Respondent's representa-
tives, the Union did not request copies of such photo-
graphs from MSHA.
B. Arguments of the Parties
The General Counsel and the Union start their argu-
ment from the premise that the Union is the exclusive
bargaining agent of Respondent 's employees and that, as
the employee representative, the Union is concerned
with the safety and health of the bargaining unit mem-
bers. Safety and health are conditions of employment, it
is urged, citing Minnesota Mining & Mfg. Co., 261 NLRB
27 (1982), and are mandatory subjects of bargaining. The
Union contends it could not fulfill its obligation to repre-
sent the employees without access to the site of the acci-
dent so that the accident could be fully investigated with
an eye toward preventing recurrences, in the interest of
employees.
Although the General Counsel and the Union recog-
nize that union representatives were present during Re-
spondent's and MSHA's onsite investigation, they con-
tend that such representatives did not have the expertise
of Wenzi, the Union's industrial hygienist, and thus could
not fully satisfy the Union's obligation to protect the in-
terests of the unit employees. And while MSHA had
made a report of the accident available to the Union, it
argued that such a report was designed to satisfy mini-
mum statutory requirements and did not serve to pre-
empt the Union's concerns or to exclude safety consider-
ations and interests from the scope of collective bargain-
ing between the Union and Respondent.
Regarding Respondent 's failure to provide the Union
with requested photographs and the internal report on
the accident, the General Counsel and the Union assert
that the photographs and report were within the bounds
of relevant health and safety matters which were produc-
ible particularly in light of the collective -bargaining com-
mitment of the parties to cooperate in the promotion of
safety and the expressed desire of both sides to prevent
additional accidents. The photographs and the report
would clearly assist the Union in accessing steps which
should be taken to avoid recurrences of the accident un-
derlying the instant case.
That the requested photographs were available from
MSHA is no defense to Respondent 's refusal to provide
them to the Union, it is urged, for it is Respondent's duty
to provide the photographs. With respect to the claimed
ASARCO, INC. 1369
confidential nature of Respondent 's internal report of the
accident , it is argued that no basis for confidentiality
exists, Although such report may have been prepared in
anticipation of litigation , no claim was made that it was
prepared by an attorney or by participation with an at-
torney so that no attorney -client privilege or work prod-
uct concerns are present to justify withholding of Re-
spondent's report.
Respondent argues, on the other hand , the absence of
need for the information requested by the Union , includ-
ing the request for access to the accident site . Respond-
ent contends that the Union 's requests were not based on
need but rather policy of the International . While noting
the Union 's contention that the information was needed
to enable the Union to bargain concerning safety matters,
Respondent urges that the Union has not shown it has
been impeded in safety bargaining by the lack of infor-
mation in this regard . Rather, it is contended that the
Union had all essential information since union represent-
atives were present during the onsite investigation. In ad-
dition , Respondent 's representatives had met with the
Union's representatives including Wenzl and had an-
swered all questions . From all the information obtained
including the MSHA report, the Union was sufficiently
informed to be critical of the MSHA report and to pro-
pose additional steps to avoid repetition of the accident.
Finally, Respondent asserts it was acting in good faith
in declining to comply with the Union 's requests. Ac-
cording to Respondent , the accident had already caused
it to lose almost four shifts of production and an addi-
tional loss of production which would be caused by an
additional onsite investigation could not be justified. In
connection with its failure to produce its internal report
on the action, Respondent claims that since such reports
are prepared with an eye toward improving safety condi-
tions and contain frank and perhaps critical comments,
compulsion of production of such documents would
cause future reports to be less candid and less effective as
devices for safety improvement . Contending that it was
not keeping anything from the Union that the Union did
not have, Respondent asserts it only kept from the Union
the record of what its representatives had observed
about the accident.
C. Conclusion
Subsequent to the close of the hearing in the instant
case, the Board issued its decision in Holyoke Water
Power Co., 273 NLRB 369 (1985), which both the Union
and Respondent agree has application here, although
each would reach a different result based on such appli-
cation. In Holyoke, the employer had denied the union's
request that its industrial hygienist be permitted access to
the employer 's forced draft fan room to survey it for po-
tential health and safety hazards associated with a noise
level there . The employer did supply the union, howev-
er, with an overall noise survey conducted by a hygienist
engaged by the employer , but which did not specifically
cover the fan room . In addition, the employer had its
test coordinator , who was not a hygienist , conduct a
survey in the fan room and supplied the union with that
survey. In finding that the employer had violated Section
8(a)(1) and (5) of the Act in denying the union access to
conduct its own test, the Board noted the necessity of
accommodating conflicting rights of the parties , i.e., the
right of employees to be responsibly represented by a
labor organization of their choice on the one hand and
the right of the employer to control its property and
ensure that its operations are not interfered with. In at-
tempting to achieve accommodation between these
rights, the Board announced the following test in Hol-
yoke, id. at 370:
Where it is found that responsible representation of
employees can be achieved only by the union's
having access to the employer ' s premises , the em-
ployer's property rights must yield to the extent
necessary to achieve this end. However, the access
ordered must be limited to reasonable periods so
that the union can fulfill its representation duties
without unwarranted interruption of the employer's
operations . On the other hand, where it is found
that a union can effectively represent employees
through some alternate means other than by enter-
ing on the employer's premises , the employer's
property rights will predominate , and the union
may properly be denied access.
Applying this test in Holyoke, the Board concluded that
the employee 's rights to responsible representation en-
tailed the union's obtaining accurate noise level readings
to ascertain the extent of employee hazard and the neces-
sity for measures to protect them outweighed the em-
ployer's property rights in this case . The Board found
the test results supplied the employer were insufficient to
meet the union's purpose , and concluded that the em-
ployer 's willingness to permit the union 's business agent
to inspect the fan room was no defense for the employer
absent evidence that the business agent was qualified to
perform the tests and evaluate the results. The Board
thus ordered the employer to grant the union's hygienist
access "for a reasonable period sufficient to allow the
union hygienist to fully observe and survey noise level
hazards."
In agreement with the parties , I find that the principles
announced in Holyoke are fully applicable to the instant
case. However , in applying the Holyoke test here, I must
conclude that the access sought by the Union for its hy-
gienist here which is clearly relevant to the Union's per-
formance of its representative duties outweighs Respond-
ent's property rights under the circumstances of this
case . In reaching this conclusion, I reject Respondent's
arguments that such access was unnecessary because the
hygienist was able to compile a competent report on the
accident through other sources including the MSHA
report. Access to an accident site by an experienced in-
vestigator is fundamental to an accurate , authoritative,
and comprehensive report on an accident . Indeed, Re-
spondent 's safety director Ledbetter conceded as much
in his testimony when he admitted on cross -examination
that, absent actually going through Respondent 's mine,
one could not conduct a fair and complete investigation
of the accident . Moreover , site access would appear to
be most critical to any valid and useful conclusions to be
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drawn from the investigation where, as here, there were
no witnesses to the accident.
Contrary to the contentions of Respondent, the Local
Union representatives who did take part in the examina-
tion of the accident site were unable to completely fulfill
the union representatives ' obligations for they were not
shown to have any accident investigation expertise.
Thus, the presence of the local representatives at the
onsite investigation is, like the employer 's willingness in
Holyoke to allow the union business agent to view the
fan room , insufficient as a defense to Respondent in the
absence of evidence that the local representatives were
qualified to conduct accident investigations and to evalu-
ate the results of such investigations . Here, Ledbetter
conceded that although the local representatives had had
training on safe practices in the mine , he was not sure
that they had any accident investigation training , training
which Ledbetter further conceded was most useful.
It is true that union hygienist Wenzl was able to piece
together a report with recommendations on the accident.
His report was critical of the MSHA report because he
viewed the report as rather narrowly drawn. Neverthe-
less, Wenzl testified that it was his belief that his visual
observation of the site was essential . Moreover, to the
extent that Respondent had already "cleaned up" the ac-
cident site prior to the request for access by Wenzl,
visual observation of the site, even if it did not contrib-
ute to the basis of cause for the accident in its "cleaned
up" state , would still be useful , according to Wenzl in his
making recommendations for future accident avoidance.
I reject the contention made by Respondent that the
Holyoke result is inapplicable here because the safety
condition there involved was an ongoing one as opposed
to an accident situation which has already taken place.
Safety concerns over conditions which have resulted in
an accident are as compelling if not more so than con-
cerns about conditions which present only a potential
hazard not yet manifested in an injury.
Consistent with Holyoke, Respondent would be enti-
tled to limit access to reasonable periods and times
which would be least disruptive to its operations. While
Respondent asserted herein that access by Wenzl to the
accident site would have been disruptive, the claim was
not substantiated by record evidence. The denial of
access to Wenzl was broad and not conditioned on pro-
duction concerns . Therefore , the reasonableness of the
Union's request for access was never questioned by Re-
spondent in terms of disruption of its operations.
Considering all the foregoing, I conclude that, under
all the circumstances of this case, the Union 's request for
relevant and necessary information essential to the satis-
faction of the Union's representational duties must pre-
vail, that Respondent 's property rights must yield to the
extent necessary for the Union's satisfaction of its duties,
and that Respondent by denying access to the Union vio-
lated Section 8(a)(5) and (1) of the Act as alleged.
I further find that Respondent's denial of the Union's
requests for photographs of the accident site also consti-
tuted a violation of Section 8(a)(5) and (1) of the Act. It
is clear that such photographs were relevant and neces-
sary to an understanding of the accident and its possible
causes. Respondent does not appear to argue otherwise,
and defends only on the premise that the photographs
were available also through MSHA. However, availabil-
ity of the information from another source is no defense.
See Kelly-Springfield Tire Co., 266 NLRB 587 (1983).
I reach the same result with respect to Respondent's
refusal to provide the Union with its report on the acci-
dent investigation. As the Union's brief points out, the
report was not shown to have been prepared by an attor-
ney or with an attorney' s assistance . It does not, there-
fore, qualify for exemption from disclosure on the attor-
ney-client privilege or the attorney work product. All
that remains is Respondent's bare claim it was prepared
in anticipation of litigation and that disclosure would
have a harmful impact on the future candor of its report-
ing processes . The Board recognizes the necessity for
balancing a union's need for information against any le-
gitimate and substantial confidentiality interests which
may be established by an employer. See Minnesota
Mining, supra. However, the Board has held that confi-
dentiality of information prepared in anticipation of liti-
gation is a matter of concern which must be weighed
against the union's need for the information. General Dy-
namics Corp., 268 NLRB 1432 (1984). However, in the
General Dynamics case, unlike the situation in the present
case, lawsuits were pending at the time of the study,
claimed to be confidential and in preparation for litiga-
tion, conducted by the employer and sought by the
union. The existence of such lawsuits and the timing of
the study substantiated the employer's claim there that
the study was prepared in anticipation of litigation.
There is no substantiation of Respondent's claim here. As
stated, no lawsuits were pending here at the time of the
Union's request for Respondent's accident report. Fur-
thermore, the record fails to establish that Respondent's
accident report would not have been prepared even in
the complete absence of the possibility of some liability
on its part in the occurrence of the accident. Under these
circumstances, I am compelled to conclude that Re-
spondent's interest in maintaining the confidentiality of
its accident report does not outweigh the Union's statu-
tory right to relevant information regarding the accident
contained in such a report. I, therefore, find that Re-
spondent violated Section 8(a)(1) and (5) of the Act in
refusing to comply with the Union's request for the pro-
duction of the accident report.
CONCLUSIONS OF LAW
1. Respondent, ASARCO, Incorporated, Tennessee
Mines Division is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. International Chemical Workers Union and Local
700 are each labor organizations within the meaning of
Section 2(5) of the Act.
3. By denying the Union's request for access to its
Young mine by an industrial hygienist chosen by the
Union to observe and investigate a fatal accident which
investigation was necessary and relevant to the Union's
discharge of its bargaining obligation, and by denying
the Union's requests for photographs and for Respond-
ent's internal report of the accident, Respondent refused
ASARCO, INC. 1371
to bargain with the Union in good faith and thereby vio-
lated Section 8(a)(5) and (1) of the Act as alleged.
THE REMEDY
Having found that Respondent violated Section 8(a)(5)
and (1) of the Act, I recommend that it be ordered to
cease and desist therefrom and in any like and related
manner interfering with, restraining, or coercing employ-
ees in the exercise of rights guaranteed in Section 7 of
the Act. I also recommend that Respondent be ordered
to take certain affirmative action necessary to effectuate
the policies of the Act to include the grant upon request
of access to the Union's chosen industrial hygienist for
the purpose of conducting an onsite accident investiga-
tion, and the provision to the Union of photographs of
the Field accident site and Respondent's internal report
of the accident investigation. Any access of the Union's
representative shall, in keeping with the accommodation
policy set forth by the Board in Holyoke, supra, be limit-
ed to a reasonable period and at a reasonable time con-
sistent with the time of least likelihood of disruption of
Respondent's operations, to allow the Union's hygienist
to fully investigate the site of the accident and its ap-
proaches.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
ORDER
The Respondent, ASARCO, Incorporated, Tennessee
Mines Division, Mascot, Tennessee, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with International
Chemical Workers Union and Local 700 by denying the
Union's request for access to its Young mine by an indus-
trial hygienist chosen by the Union to investigate an ac-
cident, and by denying the Union's requests for photo-
graphs of the accident site and a report prepared by Re-
spondent concerning the accident, all of which is rele-
vant to the Union's discharge of its bargaining obliga-
tions.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Upon request, grant access, by an industrial hygien-
ist designated by the Union, to the Young mine and the
Field accident site for a reasonable period and at a rea-
2 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
sonable time sufficient to permit the hygienist to fully in-
vestigate the accident site and its approaches.
(b) Upon request, provide the Union with photographs
taken at the field accident site and any report prepared
by Respondent in connection with the accident
investigation.(c) Post at its Young mine in Mascot, Ten-
nessee, copies of the attached notice marked "Appen-
dix."3 Copies of the notice, on forms provided by the
Regional Director for Region 10, 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 cus-
tomarily 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.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
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.
WE WILL NOT refuse to bargain in good faith with
International Chemical Workers Union and Local 700 by
denying the Union's request for access to the Young
mine by an industrial hygienist designated by the Union
to investigate the Field accident, or by denying the
Union's request for production of our photographs and
accident report concerning the Field accident, all of
which is relevant to the Union's discharge of its bargain-
ing obligation.
WE WILL NOT in any like, or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL, on request, grant access by an industrial hy-
gienist designated by the Union to our Young mine for a
reasonable period and at a reasonable time sufficient to
permit the hygienist to fully investigate the field accident
site and its approaches, and WE WILL, on request, pro-
vide the Union with our photographs and accident
report on the field accident.
ASARCO, INCORPORATED, TENNESSEE MINES
DIVISION