Central Soya Co. Inc.

National Labor Relations Board - Board Decisions

May 31, 1988

288 N.L.R.B. 1402 (N.L.R.B. 1988)

1402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Central Soya Company, Inc. and Teamsters Local
Union No. 515, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL-CIO.'
Case 10-CA-22546
May 31, 1988
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
CRACRAFT
On December 30, 1987, Administrative Law
Judge Hutton S. Brandon issued the attached deci-
sion. The General Counsel filed exceptions and a
supporting brief, and the Respondent filed cross-ex-
ceptions and a supporting brief and an answering
brief.
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 3 and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
1 The name of the charging Party has been amended to reflect the fact
that effective November 1, 1987, the Teamsters International Union was
readmitted to the AFL-CIO.
2 The General counsel has excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive 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 re-
versing the findings
'In light of our decision to adopt the judge's dismissal of the com-
plaint, we find it unnecessary to pass on the Respondent's cross-excep-
tions
In adopting the judge's decision Member Babson finds it unnecessary
to rely on the judge's conclusion that even if the Union's sole interest in
access to the Respondent's premises was to ensure that , contractors were
not aligned with the Respondent as the primary employer and to deter-
mine the legitimacy of the Umon's picketing of the reserved gate, such an
interest was related to the terms and conditions of the locked-out em-
ployees and was relevant to the Union's representation obligations
Howard Trimble, Esq., for the General Counsel.
Carl H. Trieshmann and Douglas A. Darch, Esqs. (Sey-
farth, Shaw, Fairweather & Geraldson), of Chicago, Illi-
nois, for the Respondent.
Robert Logan Jr., of Chattanooga, Tennessee, for the
' Charging Party.
1 All dates are in 1987 unless otherwise stated
2 Respondent's unopposed motion to correct the transcript, dated 8
December 1987, is granted and received in evidence as R. Exh. 15.
DECISION
STATEMENT OF THE CASE
HurroN S. BRANDON, Administrative Law Judge.
This case was tried at Chattanooga, Tennessee, on 19
October 1987. The charge was filed on 18 May 1987 1 by
Teamsters Local Union No. 515, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (the Union), and the
complaint issued on 2 July. As amended at the hearing,
the complaint alleged that Central Soya Company, Inc.
(Respondent or the Company) violated Section 8(a)(5)
and (1) of the National Labor Relations Act (the Act) by
refusing to provide the Union with relevant requested in-
formation necessary to the Union's performance of its
function as the exclusive collective-bargaining represent-
ative of certain of Respondent's employees in an appro-
priate unit, and denied the Union's request for access to
Respondent's facilities claimed necessary by the Union
for the same purpose. The factual issues presented are
whether the Union requested documentary information
from Respondent, and whether Respondent denied the
request. The primary legal issue is whether, under the
circumstances of this case, Respondent's denial of the
Union's request for access to Respondent's facility in the
performance of its representation functions violated Sec-
tion 8(a)(5) and (1) of the Act.
On the entire record 2 including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the General Counsel and Respondent, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is an Indiana corporation with an office
and place of business located at Chattanooga, Tennessee,
where it is engaged in the processing of soy beans.
During the calendar year preceding issuance of the com-
plaint, Respondent sold and shipped from its Chattanoo-
ga facility finished products valued in excess of $50,000
directly to customers located outside the State of Ten-
nessee. The complaint alleges, Respondent admits, and I
find that Respondent is an employer within the meaning
of Section 2(6) and (7) of the Act. The complaint also
alleges, the undisputed records establishes, and I also find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union and Respondent have been parties to suc-
cessive collective-bargaining agreements since about 1972
covering employees in the following unit admitted to be
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
288 NLRB No. 149
I
CENTRAL SOYA CO. 1403
All production and maintenance employees em-
ployed by Respondent at its Chattanooga, Tennes-
see facility excluding office and clerical employees,
laboratory employees, professional employees,
guards, watchmen and supervisory employees and
truck drivers.
The most recent collective-bargaining agreement be-
tween the parties expired 1 April, but negotiations for a
new collective-bargaining agreement began in March.
Negotiations were unsuccessful and Respondent on 20
April locked out its unit employees and continued the
lockout through the time of the hearing herein.3
Subsequent to the lockout, the Union picketed Re-
spondent's facility, and a dispute arose over the Union's
picketing of a gate to Respondent's facilities reserved for
the exclusive use of independent contractors, including
one R. B. Poole Company (Poole). Respondent conced-
ed in its answer herein that Poole was performing con-
tract work for it in its facility and had continuously per-
formed work for Respondent over the preceding 10
years. In any event, as a result of the Union's picketing,
Respondent filed a charge with Region 10 of the Board,
Case 10-CC-1281, alleging that the Union was violating
secondary boycott provisions of the Act. It was in this
context, and prior to the dismissal of the charge in the
secondary boycott case on 13 May, that the Union's re-
quest for access and alleged request for information oc-
curred as set forth in greater detail below.
B. The Union's Request for Access and Information
The complaint alleges that the Union on 7 May re-
quested Respondent to provide for the Union's review of
work orders, blueprints, and drawings relevant to work
being performed for Respondent by Poole and on 7 and
11 May requested access to Respondent's facilities to ob-
serve the work being performed by Poole. To establish
these allegations, the General Counsel relies on the testi-
mony of Robert Logan Jr., business manager and presi-
dent of the Union, who testified that on 7 May following
discussions with the Union's attorney and pursuant to in-
structions from him, Logan telephonically contacted
Richard Strong, Respondent's personnel service manager
who was at Respondent's Chattanooga facility at the
time. According to Logan, he asked Strong for the
Union to be allowed to come in and inspect the work
Poole had done and was doing. Further, he told Strong
that "we wanted the opportunity to come in—with any
future work—we wanted the opportunity to come in and
inspect that work and he—have access to drawings and
blueprints or any pertinent work orders or things of that
nature having to do with the work." Strong asked how
soon he needed an answer and Logan replied that he
would like an answer then. Strong responded that that
made it easy for him, and he said the answer was no.
That concluded the conversation.
Logan testified that he had no further discussions with
Strong or any other company representatives regarding
the requests explaining that he had gotten a final answer
3 No contention was made herein that the lockout was in any manner
unlawful.
as far as he knew. There was, however, correspondence
between Respondent's counsel and the Union's counsel
concerning the requests.
Thus, on 11 May, the Union's attorney, Lynn Agee,
wrote Ronald G. Ingham, an attorney then representing
Respondent, asserting the Union's position that contrac-
tors were performing work traditionally done by bar-
gaining unit employees or work related to the manufac-
turing process and referring to the Union's request for
"access to the plant facility in order to determine the
work that has been and is being performed by contrac-
tors." Agee's letter went on to state that
It is our position that the Union has the right to
perform this inspection as it is necessary for pur-
poses of bargaining as well as to assess the rights of
its members under Sec. 7 of the NLRA. We would
be willing to discuss with you and bargain with
Central Soya regarding the parameters of this in-
spection. Please treat this letter as a continuing re-
quest to inspect work performed by contractors.
Respondent replied through a letter of one of its attor-
neys, Douglas Darch, dated 22 June. Darch referred to
Agee's 11 May letter "relating to the Union's request for
bargaining regarding inspecting" the work of the con-
tractors, and asserted Respondent's willingness to meet
with union representatives to discuss the issue. Darch
noted that a mediator was arranging a meeting between
the parties within the following 2 weeks (apparently to
negotiate contract issues) and proposed discussing the
matter at that time, but nevertheless offered to meet at
"any other mutually agreeable dates."
Respondent's representative Strong in his testimony
acknowledged Logan's request for access for inspection
of Poole's work and admitted that he refused the request.
He denied, however, any further request by Logan in
their brief telephonic exchange for work orders or other
documentation regarding contractors. Strong testified he
first learned from Darch about 22 June that the Union
was contending in connection with the charge in the in-
stant case that it made a request for documentary infor-
mation in the 7 May telephone call to Strong. Strong
denied to Darch that such a request had been made, and
Darch informed Agee by letter dated 23 June that:
As we understand it, the Union's position is that
it has a right to enter the plant and inspect the work
being performed by contractors during the current
labor dispute. While there is some dispute as to the
extent of Mr. Logan's request of May 18, we are
nonetheless willing to proceed to discuss this matter
further.*
* In this regard, the Company categorically demes that Mr.
Logan requested copies of work orders, bluepnnts, and drawings
during this conversation.
Darch's letter concluded by indicating a willingness to
discuss "the matter" further and noting that if it was pre-
ferred, "the parties can discuss this topic during their
next meeting." Through Deborah Godwin, an attorney
1404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in Agee's firm, the Union replied by letter dated 25 June
stating, "As you suggest, the parties can discuss this
topic during their meeting which I understand is sched-
uled for July 2, 1987," and "We will respond to your
letter at that time."
It is undisputed that the parties met on 2 July for ne-
gotiations. The meeting, however, was not a face to face
one, since negotiations were conducted through a media-
tor. In any event, Logan conceded in his testimony that
during the 2 July meeting the Union made no requests
for information regarding the work of contractors ex-
plaining on cross-examination that he had been told by
the Union's counsel that Respondent would be bringing
that subject up at negotiations. 4 The union concedes that
there was also no discussion of the alleged request for in-
formation on contractors at subsequent bargaining meet-
ings in September and October. Accordingly, the forego-
ing and the Union's prosecution of the charge herein
constitutes the total material evidence on the Union's re-
quest for access and information related to Respondent's
use of contractors.
C. Positions of the Parties
The General Counsel's position is fairly straightfor-
ward. Thus, the argument is made, citing NLRB v. Acme
Industrial Co., 385 U.S. 432 (1967), that an employer
must "provide information that is needed by the bargain-
ing representative for the proper performance of its
duties." While the General Counsel concedes that the in-
formation requested must be relevant to the Union's duty
to represent its members, such relevancy is established
here, according to the General Counsel, by virtue of the
fact that access is necessary to the Union "to protect
itself from damage suits under Section 303 of the Act,
and for the purposes of representing the employees of
Respondent in collective bargaining in the current nego-
tiations." In another portion of the brief it was stated
that access and the information revealed thereby would
allow the Union "to determine whether continued
and/or additional picketing would be beneficial in the
representation of the employees as well as for bargaining
purposes." NLRB v. National Broadcasting Co., 798 F.2d
75 (2d Cir. 1986), enfg. 276 NLRB 118 (1985), and
NLRB v. Holyoke Water Power Co., 778 F.2d 49 (1st Cir.
1985), enfg. 273 NLRB 1369 (1985), cases involving un-
lawful employer denials of access by a union in factual
situations similar to the one in the instant case, are cited
by the General Counsel as specifically supporting the po-
sition asserted here. Noting the "balancing test" of the
Employer's property rights against the employees' right
to proper representation set forth in the Board's decision
in Holyoke, supra, the General Counsel argues that the
Union's need for access "far outweighs" any property in-
terest on the part of Respondent here and cites the
Union's willingness to seek access only "at reasonable
times and places." Further, the General Counsel claims
that there are no other means by which the Union can
obtain the information that access would reveal.
4 Logan admittedly had received a copy of Godwin's 25 June letter to
Darch prior to the 2 July meeting but testified he viewed Godwin's letter
as suggesting only that the information requested could be discussed
Respondent's position is stated in a number of argu-
ments. First, it denies that there ever was a request by
the Union for information and documents as opposed to
a request for access. Accordingly, Respondent claims
there could be no violation of the Act based on any fail-
ure to supply the Union with documentation or other in-
formation regarding the contractors.5
With respect to the access issue, Respondent argues
that the information to be derived from any union in-
spection on Respondent's premises was outside the scope
of the Employer's duty to bargain. The scope is limited
under Section 8(d) of the Act, according to Respondent,
to production of information relevant to conferring on
conditions of employment, bargaining on a collective-
bargaining agreement, or resolving questions arising
under a collective-bargaining agreement. The request for
access here had nothing to do with those matters or any
term or condition of employment and instead was sought
only to determine the legality of the Union's picketing.
Alternatively, Respondent argues that the Union has the
burden of establishing relevancy, and such relevancy was
never shown.
Assuming that access was within the scope of Re-
spondent's bargainmg obligation and that access was rel-
evant to the bargaining process, Respondent proceeds to
argue that under Holyoke, supra, and Hercules Inc., 281
NLRB 961 (1986), and the balancing test there involved,
the Union Was not entitled to access if there were alter-
native means of securing the information that access
would otherwise reveal. Here, there were alternative
means, according to Respondent, so that denial of access
was not unlawful.
Finally, Respondent claims that the Union abandoned
a request for access after 22 June when Respondent of-
fered to discuss access with the Union in Darch's letter
of that date. The Union consciously failed and refused to
pursue the matter any further after that date notwith-
standing subsequent meetings with Respondent. This fail-
ure, Respondent claims, constituted an "unmistakable
waiver" of any right to information and access.
D. Analysis and Conclusions
The law is well settled that an employer has a duty to
supply requested relevant information to a union that is
the collective-bargaining representative of the employer's
employees if the requested information is reasonably nec-
essary to the union's performance of its responsibilities.
NLRB v. Acme Industrial Co., supra; NLRB v. Truitt
Mfg. Co., 351 U.S. 149 (1956). This obligation extends
not only to information that is useful and relevant for the
purpose of contractual negotiations, but also to informa-
tion necessary to the administration of the collective-bar-
gaining agreement. See Clinchfield Coal Co., 275 NLRB
1384 (1985); Gunn & Briggs, Inc., 267 NLRB 944 (1983);
Safeway Stores, 252 NLRB 1323 (1980); and Westinghouse
5 Poole was the only contractor identified on the record as engaged in
work for Respondent during the lockout, and it appears that Respondent
ceased using Poole after the dispute arose ‘over the Union's picketing of
the reserved gate. Further, Respondent notified the Union that it had
ceased "letting work orders until further notice" The record shows no
further notice or any further work by Poole or any other contractor
CENTRAL SOYA CO. 1405
Electric Corp., 239 NLRB 106 (1978). Disclosure by an
employer of requested information "necessary . . . to
enable [a union] to evaluate intelligently grievances
filed" or contemplated, allows a union to sift out merito-
rious claims" and is said to be an aid to the arbitral proc-
ess. NLRB v. Acme Industrial Co., supra at 435, 437-438.
The information requested, however, must be relevant
and reasonably necessary for the union's proper perform-
ance of its role as collective-bargaining representative
before the obligation to produce it arises. Detroit Edison
Co., 218 NLRB 1024, 1033 (1975), reversed and remand-
ed on other grounds 440 U.S. 301 (1979). But the stand-
ard for determining relevancy is a liberal one and it is
necessary only to establish "the probability that the de-
sired information is relevant, and that it would be of use
to the union in carrying out its statutory duties and re-
sponsibilities." NLRB v. Acme Industrial, supra at 437.
See also Leland Stanford University, 262 NLRB 136 at
139 (1982), and cases cited therein.
In applying the foregoing principles to the instant case,
it must first be determined whether Logan requested Re-
spondent to provide documentary information regarding
the work of the contractors in addition to his request for
access. As noted, Logan claimed he asked Strong on 7
May for the documentary information while Strong
denied the claim. Considering the record as a whole, and
Strong's emphatic and convincing denial on the point, I
conclude that Logan was in error and credit Strong
where he contradicts Logan. In reaching this conclusion,
some additional observations need to be made.
Logan claimed in his testimony that he made notes in
his union strike log regarding his conversation with
Strong on 7 May after the telephone call. While these
notes appear to be an almost verbatim recitation of re-
marks made, they do not refer to any request for blue-
prints, drawings, or any other documentary information.
Logan's notes reflect a request "to come in" and "inspect
the work done" by Poole "last Friday" and to come in
and "make such inspection anytime construction crews
perform work in the plant in order to determine that
such work is related to the mfg. process." The notes re-
flect Strong's answer as "no to both of them." It seems
reasonable to conclude that had Logan requested docu-
mentary material, he would have referred to such re-
quest in his notes. Moreover, had there been such a re-
quest, surely the notes Would have attributed a specific
response to Strong to such request. Yet, the note shows
a response by Strong only to "both" items referred to in
Logan's notes, i.e., the request to inspect Poole's past
work and the future work of contractors.
Logan also entered some additional notes in a pocket
calendar relating to his request of Strong. Initially, based
on the General Counsel's questions of Logan, it appeared
that these notes were entered as a recording of Agee's
instructions to Logan about what to ask Respondent
After further examination and cross-examination, howev-
er, it became clear that the notes were made by Logan
following the telephone call to Strong and repeated
Strong's responses in that call as already set out in the
strike log notes. The pocket calendar notes do allude to
work orders, however, by describing the request thusly:
"request opportunity to inspect work/work orders, etc.
One of R. B. Poole last Friday. Two of future work."
As noted, however, there was no request for work
orders in Logan's strike log entry, and Logan conceded
that the strike log entry was made first. Moreover, a
Ake log entry appearing immediately above the entry
regarding the contents of Logan's call to Strong smacks
more of a recording of Agee's instructions than the entry
on Logan's pocket calendar. This cryptic strike log entry
states: "Call Co. tonight tell them if construction crews
come in want to inspect see if work related to mfg. Proc-
ess." Thus, again there was no reference for a request for
documentary information. Under these circumstances
and in light of some confusion on Logan's part regarding
the entry of the pocket calendar notes, I am inclined to
believe that such notes are unreliable as corroboration of
Logan's testimony.
There is other circumstantial evidence that tends to
support Strong's denial that there was no request for
documentary information by Logan. Thus, the charge
herein, signed by Union's counsel Agee, in outlining the
violation claimed noted only Respondent's refusal to
grant the Union access to the plant as the basis for the
violation. Had Agee directed Logan to ask for documen-
tary information or had Logan reported to Agee that he
had requested such information of Strong as Logan's tes-
timony suggests, it is unlikely that Agee would have
omitted the alleged refusal to supply such information as
a specific allegation of the otherwise detailed charge. In
addition, Agee's letter of 11 May to Ingham specifically
stated that the letter was to be treated "as a continuing
request to inspect work performed by contractors." No
reference was made to a continuing request for any doc-
umentary information that could have been expected had
Agee instructed Logan to make the request.
Still other evidence indicates that no specific request
for documentary information was made. Darch's 23 June
letter made clear that Respondent was willing not only
to discuss the Union access issue but was specifically
willing "to provide the Union with copies of work
orders as they are let to contractors during the current
labor dispute." Darch's letter further stated that in the
event the Union was unable to determine if the work
performed under the work order was work which the
Union claimed, the Company would also provide the
blueprints and drawings, if any, for the work. Godwin's
response to this offer stated, "We will respond to your
letter" at the 2 July meeting. Yet, the Union made no
such response at the 2 July meeting or at any time there-
after. This failure of response belies Logan's claim that
such information was requested by him on 7 May.
Considering the foregoing and specifically crediting
Strong, I conclude that there was no request for docu-
mentary information on contractors' work by Logan and
Respondent did not, in violation of Section 8(a)(5) and
(1) of the Act, refuse to give the Union such information.
Turning to the access issue, I reject Respondent's con-
tention that the information sought through access was
outside the scope of the Employer's duty to bargain. Re-
spondent reads Section 8(d) of the Act too narrowly. As
already noted, the duty to provide information is meas-
ured by relevancy and the reasonable necessity for the
1406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Union's proper performance as collective-bargaining rep-
resentative. Detroit Edison Co., supra at 1033. In short,
the information requested need only be relevant and of
use to the union in carrying out its statutory duties and
responsibilities. Accordingly, where relevancy is estab-
lished, the providing of information to a union of use to
it in carrying out its statutory duties and responsibilities
is clearly within the scope of an employer's obligations
contemplated under Sections 8(d) and 8(a)(5) of the Act.
Moreover, the requested access relates to terms and
conditions of employment for it involves resolution of
whether contractors were performing bargaining unit
work or at least whether they were engaged in the man-
ufacturing process. To this extent, like the access sought
by the union in National Broadcasting Co., supra, the re-
quest for access involved indirectly policing the recently
expired collective-bargaining agreement. The fact that
the agreement had expired is immaterial. It is well estab-
lished that the policies of Section 8(a)(5) of the Act re-
quire that the terms of a collective-bargaining agreement
relating to mandatory subjects of bargaining may not be
unilaterally changed without notice to, and negotiations
with, the other party to the agreement even where the
agreement has expired. See Hinson v. NLRB, 428 F.2d
133 , (8th Cir. 1970). Access and inspection to ensure
compliance with terms and conditions of employment
that Respondent could not unilaterally change remains in
the best interest of the employees and therefore funda-
mental to the Union's representation obligation and the
employees' terms and conditions of employment.6
The Union's representation obligation included the ob-
ligation to ensure the integrity of the bargaining unit
work and the prevention of erosion of such work
through use of contractors. See W-L Molding Co., 272
NLRB 1239 (1984). The fact that a lockout was in proc-
ess during the time that the Union sought access does
not diminish in any respect the Union's representation
obligation that would be fulfilled by policing its interest
in seeing whether the contractors were engaged in "the
manufacturing process." If anything, the necessity for
access to fulfill the Union's obligation in this regard was
greater as a result of the lockout because bargaining unit
employees were eliminated as a source of information re-
garding Respondent's adherence to established terms and
conditions of employment.
Even if the Union's sole interest in access was to
ensure that contractors were not aligned with Respond-
ent as the primary employer and to determine the legiti-
macy of the Union's picketing of the reserved gate, I
find such interest or purpose is still related to terms and
conditions of employment of the locked-out employees
and relevant to the Union's representation obligations.
There was clearly a labor dispute existent between Re-
6 Indeed, the provision in the expired bargaining agreement at art VI
granting the Union access to Respondent's premises "to insure the provi-
sions of this agreement are maintained," constitutes an acknowledgement
on Respondent's part of this prmciple. While an argument could be made
that this "visitation clause" survived the expiration date of the agreement
so that Respondent's denial of access to the Union here constituted a uni-
lateral change in the agreement (see National Broadcasting Go, 276
NLRB 118 at 123 (1985)), the General Counsel specifically disaVowed
such an argument herein Accordingly, no findings will be made herem
on this point.
spondent and the locked-out employees. It was in the in-
terest of the Union in the performance of its representa-
tion obligations to publicly advertise by picketing or
other lawful means this dispute. Clearly, a union's right
to picket in support of a dispute with an employer is at
the core of Section 7 rights under the Act. Medina Super
Duper, 286 NLRB 728 (1987). The right to picket would
be frustrated here if the Union, the recognized and ac-
knowledged collective-bargaining representative of Re-
spondent's employees, were forced to engage in a game
of "gotcha" with Respondent by virtue of Respondent's
withholding of information by which the Union could
determine the legitimacy of its picketing. Accordingly, I
conclude in the context of picketing to advertise a dis-
pute with Respondent, the Union's request for access re-
lated to terms and conditions of employment of unit em-
ployees and the employees' right to responsible union
representation through advice regarding the picketing. In
short, I find the access sought by the Union, if only to
verify legitimacy of the Union's picketing, was relevant
and useful to the Union in carrying out its statutory
duties and responsibilities to unit employees.
As Respondent further argues, however, a determina-
tion that the information sought by the Union through
access is relevant to the Union's proper performance of
its representation duties does not ipso facto obligate an
employer to open its doors. The Board made this clear in
its decision in Holyoke Water Power Co., supra. In Hol-
yoke, which both the General Counsel and Respondent
recognize as being apposite, the Board stated that in ad-
dition to establishing that the presence of a union repre-
sentative on the employer's premises is relevant to the
Union's performance of its representation duties; there
must be a balancing of the rights of employees to be re-
sponsibly represented with the employer's right to con-
trol his property. More specifically, the Board stated at
1370:
[W]e are constrained to balance the employer's
property rights against the employees' right to
proper representation. Where it is found that re-
sponsible representation of employees can be
achieved only by the union's having access to the
employer's premises, the employer'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 interrup-
tion 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 entering on the employer's premises,
the employer's property rights will predominate,
and the union may be denied access.
In sum, the circumstances presented in each case
involving a request for access must be carefully
weighed, and each of the conflicting rights must be
carefully balanced and accommodated in reaching a
decision.
Do the representational interests of unit employees
outweigh Respondent's property rights here? Resolution
CENTRAL SOYA CO. 1407
of this issue turns on the balancing test set forth in Hol-
yoke and a determination of whether the Union could ef-
fectively represent the unit employees through some
means other than access to Respondent's premises. As
previously suggested, the existence of a lockout in the in-
stant case made the Union's need for information regard-
ing the work being performed by the contractor critical,
since the unit employees were eliminated as a source of
information. That source of information is particularly
critical when, as here, the record reflects that there has
been some confusion regarding the work of contractors
historically used by Respondent and the work of mainte-
nance employees who are bargaining unit employees.7
Indeed, Kenneth Kilgore, a maintenance employee of
Respondent as well as a union steward, testified that,
during the last full year the collective-bargaining agree-
ment was in effect, three or four grievances had been
filed and several complaints made regarding contractors
performing bargaining unit work of the maintenance em-
ployees. According to the credible and uncontradicted
testimony of Kilgore, the Union lost those grievances
when it was established that contractors were engaged in
"new installation," i.e., the installation of new equipment,
but won when the work involved the maintenance or
repair of installed equipment.
Kilgore further related that the maintenance men
sometimes worked "shoulder to shoulder" with contrac-
tor employees, and noted that on some occasions mainte-
nance employees would "install something." Normally,
maintenance employees performed work pursuant to a
"service ticket" involving "normal day routine" work
while contract employees whom Kilgore also referred to
as "construction people" worked pursuant to "work
orders" for a "special job." Kilgore, who said he did a
substantial amount of electrical work in his department,
testified that he occasionally worked from "prints" and
wiring diagrams. On such occasions, the work was done
pursuant to a work order rather than a service ticket.
Logan testified that it would be virtually impossible to
determine whether a contractor, and Poole specifically,
was doing bargaining unit or manufacturing work with-
out access and simply by reviewing blueprints and work
orders. This is because, according to Logan, "the work is
so interrelated" and the "subcontractors for 30 years
have worked shoulder to shoulder in there" with unit
employees. He conceded, however, that he was not inti-
mately familiar with the work contractors had done in
the past as contrasted with unit work. He pointed out,
however, that the Union had been successful in convinc-
ing the Board of the lack of merit in the charge against
the Union in Case 10-CC-1281 by establishing that work
openly done by Poole on a sprinkler system near Re-
spondent's entrance gate and in sight of the pickets was
work previously done by the maintenance employees.
Kilgore, who was called as a witness by the General
Counsel, contradicted Logan's testimony concerning the
necessity for access. Asked specifically if review of a
work order and blueprints compared to prior service
tickets would be sufficient to determine whether work
7 Respondent employs approximately 35 maintenance employees and
117 employees in production classifications.
being performed by a contractor was work previously
done by maintenance employees, Kilgore answered af-
firmatively.
Kilgore's testimony on this point found support in the
testimony of Strong who related that blueprints and
written descriptions of the work in issue as set forth on
purchase orders would provide a sufficient basis for de-
termining whether bargaining unit or production work
was being done by the contractor and, even if it were
not sufficient in itself, it would serve to justify a request
for further documentation. According to Strong, while
conceding he was not an engineer, the purchase orders
alone would serve the Union's purposes in this regard.
Considering the credible testimony of Strong and Kil-
gore, I am persuaded that adequate alternative methods
existed for ascertaining the type and amount of work
performed by contractors for Respondent. Logan's lack
of familiarity with the prior work of the contractor un-
dermines the validity of his contention that any infringe-
ment on bargaining unit work could not be ascertained
without access. Kilgore, by virtue of being a regular
maintenance employee who had worked with prior con-
tractors and who was familiar with the normal type , of
work performed by contractors in contrast to that of
maintenance employees, was in a much better position to
assess the value of the alternative methods of ascertain-
ing either infringement on bargaining unit work or work
being performed in the production process. The fact that
it was determined through observation that Poole had
done bargaining unit work on the sprinkler system does
not establish that the same fact could not have been as-
certained through reference to work orders, blueprints,
service tickets, or purchase orders without access and
observation. Crediting Kilgore and Strong in this regard,
I conclude alternative methods existed for determining
the work performed by the contractors. Accordingly, on
balance, I find the employees' representational rights
under the circumstances of this case do not outweigh
Respondent's property rights. I therefore fmd that Re-
spondent's denial of access to the Union here was not
violative of Section 8(a)(5) and (1) of the Act.
Having previously found that Respondent did not, in
violation of Section 8(a)(5) and (1) of the Act, deny a re-
quest by the Union for documentary information, it will
be recommended that the complaint be dismissed in its
entirety.8
CONCLUSIONS OF LAW
1. Respondent, Central Soya Company, Inc., is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union, Teamsters Local Union No, 515, affili-
ated with International Brotherhood of Teamsters,
8 The foregoing conclusion ,renders unnecessary any finding with re-
spect to Respondent's argument that the Union abandoned its request for
access by virtue of the Union's failure to raise the matter after Respond-
ent indicated its willingness to discuss the matter in Darch's 23 June
letter It should nevertheless be observed that Agee's letter of 11 May
made the request for access a continuing one and Respondent never re-
versed its initial denial of access. Further, the Union continued prosecu-
tion of the charge -herein would appear to dispel any notion that it was
abandoning its request for access.
1408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Chauffeurs, Warehousemen and Helpers of America, is a
labor organization 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 production and maintenance employees em-
ployed by Respondent at its Chattanooga, Tennes-
see facility excluding office and clerical employees,
laboratory employees, professional employees,
guards, watchmen and supervisory employees and
truck drivers.
4. The Union has been the recognized collective-bar-
gaining representative of all the employees in the unit de-
scribed in paragraph 3 immediately above.
5. Respondent did not refuse to provide for the
Union's review work orders, blueprints, and drawings
relevant to work being performed for Respondent by
R. B. Poole Company or other contractors and therefore
did not violate Section 8(a)(5) and (1) of the Act in this
regard.
6. Respondent did not violate Section 8(a)(5) and (1)
of the Act in denying the Union access to Respondent's
facilities for the purpose of observing the work being
performed by R. B. Poole Company or other contrac-
tors.
7. Respondent did not violate the Act in any manner
set forth in the complaint.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed9
ORDER
The complaint is dismissed in its entirety.
9 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.