Conoco, Inc.

National Labor Relations Board - Board Decisions

Apr 9, 1985

275 N.L.R.B. 39 (N.L.R.B. 1985)

CONOCO CHEMICALS CO. 39
Conoco Chemicals Company, Division of Conoco,
Inc. and Local 853, International Chemical
Workers Union. Case 5-CA-16085
9 April 1985
DECISION AND ORDER REMANDING
BY CHAIRMAN DOTSON AND MEMBERS
. , , HUNTER AND DENNIS
On 16 February 1984 the Regional Director for
Region 5 of the National Labor Relations Board
issued a complaint and notice of hearing in the
above-entitled proceeding. The complaint alleges
that Respondent Conoco Chemicals Company has
engaged in and is engaging in certain unfair labor
practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7)
of the National Labor Relations Act by refusing to
bargain collectively and in good faith with the rep-
resentative of its employees.
In substance, the complaint alleges that Local
853, the Union, was certified as the exclusive col-
lective-bargaining representative of the unit em-
ployees on or about 22 March 1977, and has been
recognized as such by the Respondent since that
time. The parties' latest collective-bargaining agree-
ment is effective for the period from 1 July 1983 to
1 July 1985. On or about 13 July 1983 and again on
or about 10 January 1984 the Union requested that
the Respondent supply certain information con-
cerning the processing of a grievance to arbitra-
tion. The grievant, John Dornbush, had earlier
been suspended on the Respondent's conclusion
that he had misrepresented his overtime records.
The complaint alleges that the specific information
requested by the Union was the "names of the wit-
nesses who stated [to Respondent that] Mr. Dorn-
bush was not in early" on the day the grievant was
said to have falsified the overtime records. The
complaint alleges that this information was neces-
sary for and relevant to the Union's performance of
its duties as the exclusive representative of the unit
employees. It is further alleged that since approxi-
mately 10 January 1984 the Respondent has failed
and refused to supply the Union with the specified
information, thereby violating Section 8(a)(5) and
(1). By answer filed 2 March 1984 the Respondent
admitted in part and denied in part the complaint's
allegations.
On 16 July 1984 the Respondent filed directly
with the Board a Motion for Summary Judgment
with exhibits attached. On 20 July 1984 the Board
issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the Re-
spondent's Motion for Summary Judgment should
not be granted. On 17 August 1984 the General
Counsel filed a brief in opposition to the Respond-
ent's motion and a Cross-Motion for Summary
Judgment with exhibits attached, and the Union
filed an answer to the Respondent's motion and a
Cross-Motion for Summary Judgment.
On the entire record, the Board makes the fol-
lowing
Ruling on the Motions for Summary Judgment
The Respondent argues in its Motion for Sum-
mary Judgment that the Union's original request
for information pursuant to the processing of Dorn-
bush's grievance involved a number of matters in-
cluding the names of witnesses and copies of any
statements given by them to the Respondent. The
Respondent complied with the Union's information
request except as to these two matters. The Re-
spondent contends that it is not required to submit
either the names of witnesses or their statements
because of the likelihood that the Union and/or
Dornbush would harass and intimidate the wit-
nesses if identified.' The Respondent argues that
the Union has demonstrated a pattern of violence
and coercion directed toward those who oppose its
views, and it produced copies of court documents
to support its contention. The documents show that
during a 1977 strike against the Respondent the
Union was found in contempt of a state circuit
court's consent order enjoining the Union and its
members from engaging in acts of violence and in-
timidation against the Company. Another court
document states that during the same strike Dorn-
bush was found guilty of causing malicious destruc-
tion to the Respondent's property and ordered to
pay a $100 fine. Given this background of union
harassment and coercion the Respondent concludes
that it has a reasonable basis for refusing to identify
its witnesses and that it is within an exception to
the obligation of an employer to furnish requested
information to the collective-bargaining representa-
tive.
In response to the Respondent's motion, the
General Counsel argues that the Respondent's
papers submitted to the Board raise issues of mate-
rial fact which require a hearing for resolution.
Most notably, he contends that the Respondent's
claim concerning the likelihood of harassment of
' Although the Respondent insists that the Union is seeking the wit-
nesses' statements as well as their identities in this proceeding , the only
information sought by the Union which is a subject of the complaint is
the names of the witnesses In its brief the Union admits that , although its
original request included witness statements, it is no longer seeking pro-
duction of such documents
Clearly the Respondent is not required to furnish witness statements
See Anheuser-Busch. Inc, 237 NLRB 982 (1978). We adhere to the specif-
ic language of the complaint with respect to the nature of the requested
information in this case
275 NLRB No. 9
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the witnesses is open to serious doubt. There is no
record of coercive conduct engaged in by the
Union or by Dornbush alone between the time of
the strike in 1977 and the present grievance which
arose in 1983. Thus the claim of a demonstrated
pattern of violence and coercion is alleged to be
without basis. Further, the General Counsel con-
tends that Dornbush's conviction for malicious
property destruction was either withdrawn or not
pursued by the state on appeal, although no sup-
porting evidence was offered for this claim. The
General Counsel concludes that the Respondent
has not offered convincing evidence that there is
an imminent danger of harassment and intimidation
should the witnesses be identified. In addition, the
General Counsel argues that the Respondent's
denial of the necessity and relevance of the re-
quested information in its answer to the complaint
places these matters in issue and is further cause for
a hearing. He contends that the necessity and the
relevance of the identification of witnesses relate to
the Union's further evaluation of the grievance and
to its preparation for arbitration.
In its response to the Respondent's motion, the
Union argues that its behavior in 1977 does not
provide any supporting evidence for the present
claim that the witnesses would be threatened and
harassed if identified. It also contends that the in-
formation is relevant to and necessary for the
Union's performance of its grievance-processing
obligations, especially with regard to preparation
for the arbitration hearing. On these grounds the
Union moves for summary judgment. The General
Counsel also moves alternatively for summary
judgment for reasons similar to the ones offered by
the Union.
It is a settled principle that for summary judg-
ment to be appropriate the record must show that
there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a
matter of law. See, e.g., Stephens College, 260
NLRB 1049, 1050 (1982).
In the present proceeding, the Respondent claims
that, if identified, its witnesses would be threatened
and coerced by the Union and/or Dornbush, and it
offers evidence of past conduct of the Union and
its members which allegedly demonstrates a capac-
ity for such behavior. As the General Counsel
argues, the Respondent's evidence is not conclusive
with regard to a present danger of witness harass-
ment. However, the claim and the supporting evi-
dence do raise factual issues with serious ramifica-
tions. Further, should the likelihood of witness co-
ercion be established at the hearing, the necessity
and relevance of the requested information would
require further inquiry.
Based on the foregoing, we conclude that factual
issues are presented in this case which can best be
resolved through the conduct of a hearing. Ac-
cordingly, the Motion and the Cross-Motions for
Summary Judgment are denied.2
ORDER
It is ordered that the Respondent's Motion for
Summary Judgment be denied.
IT IS FURTHER ORDERED that the Cross-Motions
for Summary Judgment of the General Counsel
and the Charging Party be denied.
IT IS FURTHER ORDERED that this proceeding be
remanded to the Regional Director for Region 5
for further appropriate action.
2 In his brief to the Board the General Counsel requested that several
of the exhibits which the Respondent submitted with its summary judg-
ment motion be struck from the record Given our decision above, we
see no need to consider the request at this time The General Counsel is
granted leave to renew the request before the administrative law judge