E. I. du Pont & Co.

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 893 (N.L.R.B. 1993)

893
311 NLRB No. 88
E. I. DU PONT & CO.
1 On May 13, 1992, Administrative Law Judge Marion C. Ladwig
issued the attached decision. The Respondent and the General Coun-
sel filed exceptions and supporting briefs. The Respondent and the
General Counsel also filed answering briefs. The Charging Party
filed a brief in opposition to the Respondent’s exceptions. Amicus
curiae briefs were filed by International Union, United Mine Work-
ers of America, Labor Policy Association, and by the National Asso-
ciation of Manufacturers, the Chamber of Commerce of the United
States of America, the American Iron and Steel Institute, and the
Coalition of Management for Positive Employment, Training and
Education.
Chairman Stephens is recused from participating in this case.
2 The judge found that the Respondent dominated the formation of
the Freon Committee. He then found it unnecessary to reach the alle-
gation that the Respondent dominated the formation of the Fitness
Committee because such a finding would not affect the remedy. The
General Counsel excepts to the judge’s failure to pass on the Fitness
Committee allegation and urges that the remedy is affected by this
failure because there is no remedial provision regarding domination
of the formation of committees. We agree with the General Coun-
sel’s contention that the remedy does not address domination of for-
mation. In this regard, the judge inadvertently failed to include a re-
medial provision for the violation he found concerning the formation
of the Freon Committee. We correct this oversight and accordingly
find it unnecessary to rule on the allegation that the Respondent
dominated the formation of the Fitness Committee, as it would not
affect the corrected remedy.
3 Although the judge found that the Respondent unlawfully by-
passed the Union by dealing with the safety committees and the fit-
ness committee concerning numerous proposals for safety awards
and recreational facilities, the judge inadvertently failed to address
the allegations that the Respondent violated Sec. 8(a)(5) by imple-
menting these proposals without affording the Union the opportunity
to bargain. We correct this oversight and find that the Respondent
unlawfully implemented proposals concerning safety incentives and
prizes and fitness facilities. (See G.C. Exh. 36 which contains the
parties’ stipulation to the items provided by the Respondent.) We
shall order the Respondent to cease and desist from unilaterally pro-
viding such items. We shall also order the Respondent, on request
by the Union, to rescind these unilateral changes. However, our
Order should not be construed as requiring the Respondent to cancel
any benefit without a request from the Union. See, e.g., Columbia
Portland Cement Co., 303 NLRB 880, 885 (1991).
4 The Respondent argues, and the General Counsel agrees, that the
judge provided an overbroad remedy for the Respondent’s unlawful
prohibition of the use of the electronic mail system for the distribu-
tion of union literature and notices. We find merit in the Respond-
ent’s exception and shall limit the remedy to discriminatory prohibi-
tion of the use of the electronic mail system for distributing union
literature and notices. See Storer Communications, 294 NLRB 1056,
1099 (1989).
5 309 NLRB 990 (1992).
6 As is clear from the decision and his concurring opinion in
Electromation, Inc., supra, Member Oviatt agrees in many respects
with the comments of his concurring colleague, particularly those re-
garding the efficacy and usefulness of employee-management coop-
erative programs and the rationale used to determine whether Sec.
8(a)(2) has been violated. Electromation, Inc., also highlights areas
in which Member Oviatt’s approach differs from that of his concur-
ring colleague, in particular the issue whether employee-members of
a committee must act in a representational capacity before the com-
mittee can be found to be a Sec. 2(5) labor organization.
Member Raudabaugh shares his concurring colleague’s interest in
encouraging and allowing employees, employers, and unions law-
fully to pursue employee participation and cooperation between man-
agement and employees in the workplace. He stresses here, however,
as he did in his concurring opinion in Electromation, that the Board
Continued
E. I. du Pont de Nemours & Company and Chem-
ical Workers Association, Inc., International
Brotherhood of Dupont Workers and Cham-
bers Works Central Safety and Occupational
Health Committee; Antiknocks Area Safety
Committee; Jackson Lab Programs and Pub-
licity Committee; Freon Central Safety Com-
mittee; Chambers Works Fitness Committee
a/k/a Chambers Works Recreation/Activities
Committee; Control Unit Safety Committee;
and Physical Distribution Safety Committee
a/k/a Environmental Resources Safety Com-
mittee, Parties-in-Interest. Cases 4–CA–18737–
1, 4–CA–18737–2, 4–CA–18737–3, 4–CA–
18737–4, 4–CA–18737–5, 4–CA–18737–6, 4–
CA–18737–7, 4–CA–18792, 4–CA–18835, 4–CA–
18840–2, and 4–CA–19078
May 28, 1993
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
The central issues in this case are whether six safety
committees and one fitness committee are employer-
dominated labor organizations within the meaning of
Section 2(5) and Section 8(a)(2) of the Act and wheth-
er the Respondent bypassed the Union in dealing with
the committees and in dealing with unit employees
during safety conferences, in violation of Section
8(a)(5).1 The judge found that the seven committees at
issue are labor organizations and that the Employer
dominated the formation of one of the committees2
and the administration of all the committees, in viola-
tion of Section 8(a)(2). He found that the Respondent
bypassed the Union by dealing with these committees,
in violation of Section 8(a)(5).3 The judge, however,
dismissed the allegations that the Respondent violated
Section 8(a)(5) by holding safety conferences.
We agree with all the judge’s rulings.4 We add ra-
tionale to his decision because we wish to provide
guidance for those seeking to implement lawful coop-
erative programs between employees and management.
Our recent decision in Electromation5 addressed cer-
tain issues raised by employee participation commit-
tees in a nonunion setting. The instant case provides
the opportunity to address issues raised by employee
participation committees which exist in circumstances
where employees have selected an exclusive collective-
bargaining representative. The Respondent here ran
afoul of the Act. We clarify the basis for these viola-
tions and suggest what the Respondent could have
done to avoid unlawful conduct. The Respondent also
engaged in some lawful cooperative efforts. We em-
phasize those efforts because they show that there is
some room for lawful cooperation under the Act.6
894 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
must evaluate all such efforts under the strictures of applicable Fed-
eral law. The Board does not have the power to rewrite the 1935
National Labor Relations Act. At best, the Board may reinterpret
that statute in light of subsequent developments, as suggested by his
Electromation concurrence and his four-factor test for determining
whether there is an 8(a)(2) violation.
Member Raudabaugh finds that the Respondent’s conduct in this
case with respect to the safety and fitness committees violates Sec.
8(a)(2) under his four-factor test. He notes, with appreciation, that
Member Devaney’s concurrence here seems to be consistent with
much of Member Raudabaugh’s Electromation four-part test. When
all is said and done, however, the question is whether the 1935 Act
prohibits far more of today’s employee participation activities than
it permits.
7 We agree with the judge’s conclusion that the employee-mem-
bers of the committee acted in a representational capacity. Member
Oviatt, therefore, finds it unnecessary to determine whether labor or-
ganization status under Sec. 2(5) could be found in the absence of
a finding that the organization acted as a representative of other em-
ployees. Member Raudabaugh believes that representation is not a
necessary element for labor organization status.
The Respondent contends that an element of proof necessary to
finding that a committee is a Sec. 2(5) labor organization is a show-
ing, in the form of credible testimony by nonparticipating employ-
ees, that the ‘‘totality of circumstances surrounding the composition
and functioning of the committee led [nonparticipating employees]
to believe that the employee members were there to represent the in-
terests of non-participating employees.’’ The Respondent essentially
urges the use of a subjective standard based on direct affirmative
evidence concerning the state of mind of nonparticipating employees.
The Board has rejected such a standard in other contexts. See, e.g.,
Electra Food Machinery, 279 NLRB 279, 280 (1986). We reject it
here also. We find that the documentary and testimonial evidence
supports the judge’s finding that the committees in fact acted in a
representational capacity.
8 See, e.g., Postal Service, 302 NLRB 767, 776 (1991), holding
that the term ‘‘wages’’ does not merely refer to a sum of money
given for actual hours worked but also refers to other forms of com-
pensation and benefits.
9 360 U.S. 203 (1959).
10 See Electromation, 309 NLRB at 995 fn. 21.
11 There is also an issue as to whether the ‘‘suggestion box’’ is
an organization, committee, or plan, within the meaning of Sec. 2(5).
1. Labor organization status under Section 2(5)
of the Act
The threshold question for a determination of wheth-
er an employer has violated Section 8(a)(2) is whether
the entity involved is a labor organization. Under the
statutory definition set forth in Section 2(5), the entity
is a labor organization if (1) employees participate, (2)
the organization exists, at least in part, for the purpose
of ‘‘dealing with’’ employers, and (3) these dealings
concern ‘‘conditions of work,’’ grievances, labor dis-
putes, wages, rates of pay, or hours of employment.7
There is no question that each committee at issue here-
in is an organization in which employees participate.
In addition, the committees discuss subjects such as
safety, incentive awards for safety, or benefits such as
employee picnic areas and jogging tracks. These sub-
jects fall within the categories of subjects listed in Sec-
tion 2(5).8 The committees, therefore, meet the first
and third requirements for labor organization status.
We turn now to the second requirement.
The Limits of ‘‘dealing with’’
The principal issue is whether the committees exist
for the purpose, at least in part, of ‘‘dealing with’’ the
employer on statutory subjects. The Supreme Court
held in NLRB v. Cabot Carbon Co.9 that the term
‘‘dealing with’’ in Section 2(5) is broader than the
term ‘‘collective bargaining.’’ The term ‘‘bargaining’’
connotes a process by which two parties must seek to
compromise their differences and arrive at an agree-
ment. By contrast, the concept of ‘‘dealing’’ does not
require that the two sides seek to compromise their dif-
ferences. It involves only a bilateral mechanism be-
tween two parties.10 That ‘‘bilateral mechanism’’ ordi-
narily entails a pattern or practice in which a group of
employees, over time, makes proposals to manage-
ment, management responds to these proposals by ac-
ceptance or rejection by word or deed, and com-
promise is not required. If the evidence establishes
such a pattern or practice, or that the group exists for
a purpose of following such a pattern or practice, the
element of dealing is present. However, if there are
only isolated instances in which the group makes ad
hoc proposals to management followed by a manage-
ment response of acceptance or rejection by word or
deed, the element of dealing is missing.
Just as there is a distinction between ‘‘bargaining’’
and ‘‘dealing,’’ there is a distinction between ‘‘deal-
ing’’ and no ‘‘dealing’’ (and a fortiori no ‘‘bar-
gaining’’). For example, a ‘‘brainstorming’’ group is
not ordinarily engaged in dealing. The purpose of such
a group is simply to develop a whole host of ideas.
Management may glean some ideas from this process,
and indeed may adopt some of them. If the group
makes no proposals, the ‘‘brainstorming’’ session is
not dealing and is therefore not a labor organization.
Similarly, if the committee exists for the purpose of
sharing information with the employer, the committee
would not ordinarily be a labor organization. That is,
if the committee makes no proposals to the employer,
and the employer simply gathers the information and
does what it wishes with such information, the element
of dealing is missing, and the committee would not be
a labor organization.
Likewise, under a ‘‘suggestion box’’ procedure
where employees make specific proposals to manage-
ment, there is no dealing because the proposals are
made individually and not as a group.11
The committees at issue here do not fall within any
of these safe havens. They involve group action and
not individual communication. They made proposals
and management responded by word or deed. The
895E. I. DU PONT & CO.
12 See e.g., St. Vincent’s Hospital, 244 NLRB 84, 85–86 (1979)
(free coffee and meals); Southern Florida Hotel Assn., 245 NLRB
561, 569 (1979) (providing beer, soft drinks, and snacks); and
Poletti’s Restaurant, 261 NLRB 313, 317 fn. 16 (1982) (free des-
serts).
13 We reject the Respondent’s argument that the committees were
performing narrowly defined tasks that historically had been per-
formed by either management committees or by management di-
rectly and, thus, that they were ‘‘dealing for,’’ not ‘‘dealing with’’
the Respondent. This contention is contrary to the evidence, which
shows a significant change in the composition, operation, and re-
sponsibility of the committees from the Employer’s previous unilat-
eral safety and audit programs. Thus, we have found, contrary to the
Respondent’s contention, that the Safety and Fitness Committees
were not charged with performing delegated management functions.
In any event, setting wages, hours, and terms and conditions of em-
ployment, etc., can be both management functions and mandatory
subjects of bargaining. In either case, bilateral discussions of these
statutory subjects constitute ‘‘dealing with’’ within the meaning of
Sec. 2(5).
Member Oviatt notes that the Respondent has raised a ‘‘de mini-
mis’’ argument only in the 8(a)(5) context. The Respondent has not
excepted that the committees’ impact on terms and conditions of em-
ployment was de minimis in the 8(a)(2) context and that issue is not
before the Board. Therefore Member Oviatt does not address that
issue.
Our concurring colleague concludes that the committees in this
case were engaged in ‘‘bargaining.’’ Because ‘‘bargaining’’ is in-
cluded within the broader term ‘‘dealing’’ (see Cabot Carbon,
supra), we assume that our colleague also finds ‘‘dealing’’ in this
case. We find it unnecessary to resolve the issue whether there is
‘‘bargaining.’’ In our view, it is sufficient, for 2(5) purposes, that
there is ‘‘dealing.’’
14 To the extent that the Respondent reads Secs. 8(c) and 9(a) of
the Act to confer on employers an unlimited right to communicate
Continued
committees made proposals to management representa-
tives in different ways.
Some of the committees submitted proposals, con-
cerning safety and fitness or recreational matters, to
representatives of management outside the committees.
Management representatives responded to these pro-
posals. For example, the Antiknocks Committee pro-
posed to various supervisors and managers that safety
problems be corrected, and the managers responded to
these proposals. The Fitness Committee proposed to
higher management that tennis courts and a pavilion be
constructed, and management rejected this proposal on
the ground that it was too costly at the time. This ac-
tivity between committees and management is virtually
identical to that found to be ‘‘dealing’’ in Cabot Car-
bon.
All the committees discussed proposals with man-
agement representatives inside the committees. Each
committee has management representatives who are
full participating members. These representatives inter-
act with employee committee-members under the rules
of consensus decision-making as defined in the Re-
spondent’s Personal Effectiveness Process handbook.
The handbook states: ‘‘consensus is reached when all
members of the group, including its leader, are willing
to accept a decision.’’ Under this style of operation,
the management members of the committees discuss
proposals with unit employee members and have the
power to reject any proposal. Clearly, if management
members outside the committee had that power, there
would be ‘‘dealing’’ between the employee committee
and management. In our view, the fact that the man-
agement persons are on the committee is only a dif-
ference of form; it is not a difference of substance. As
a practical matter, if management representatives can
reject employee proposals, it makes no real difference
whether they do so from inside or outside the com-
mittee. In circumstances where management members
of the committee discuss proposals with employee
members and have the power to reject any proposal,
we find that there is ‘‘dealing’’ within the meaning of
Section 2(5).
The mere presence, however, of management mem-
bers on a committee would not necessarily result in a
finding that the committee deals with the employer
within the meaning of Section 2(5). For example, there
would be no ‘‘dealing with’’ management if the com-
mittee were governed by majority decision-making,
management representatives were in the minority, and
the committee had the power to decide matters for
itself, rather than simply make proposals to manage-
ment. Similarly, there would be no ‘‘dealing’’ if man-
agement representatives participated on the committee
as observers or facilitators without the right to vote on
committee proposals.
As noted above, if a committee exists for the sole
purpose of imparting information, there would be no
dealing. In addition, if a committee exists for the sole
purpose of planning educational programs, there would
be no dealing. The Central Safety Program Committee
and the Jackson Lab Program Committee, however,
did not limit their activities to imparting information or
planning educational programs. Both committees also
decided on incentive awards to be given to unit em-
ployees, either in recognition of, or to encourage, safe
work practices. Such awards are benefits and com-
pensation which are mandatory subjects of bar-
gaining12 and fall within the subjects set forth in Sec-
tion 2(5). In light of this, and because the management
representatives and unit employees on the committee
determined incentive awards under the rules of con-
sensus decision-making, we find that the committees
existed for the purpose, in part, of dealing with the
employer on a statutory subject.13
2. Domination of the administration and/or
formation of the committees
The structural operations of the committees warrant
the finding that the Respondent dominated the admin-
istration of the committees.14 As discussed above, the
896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
directly with employees, it is mistaken. See Electromation, 309
NLRB at 995 fn. 22.
15 The committees operated under the Personal Effectiveness Proc-
ess (PEP). The Respondent’s PEP handbook indicates that each com-
mittee has a leader, a resource, and a scribe (note taker) who confer
before each meeting and determine the agenda. The leader and the
resource chair the meeting and keep it ‘‘on track.’’ After the meet-
ing, the leader, resource, and scribe evaluate the meeting and discuss
how to improve the next meeting.
16 The General Counsel does not contend that the Respondent vio-
lated Sec. 8(a)(1) by soliciting grievances. Accordingly, we express
no view on that issue.
Respondent ultimately retains veto power over any ac-
tion the committee may wish to take. This power ex-
ists by virtue of the management members’ participa-
tion in consensus decision-making. The committee can
do nothing in the face of management members’ oppo-
sition. In addition, the record shows that in each com-
mittee, a management member serves as either the
leader or the ‘‘resource’’ (monitor or advisor) and
therefore has a key role in establishing the agenda for
each meeting and in conducting the meeting.15
The Respondent also controls such matters as how
many employees may serve on each committee. In ad-
dition, the Respondent determines which employee
volunteers will be selected in the event that the number
of volunteers exceeds the number of seats designated
for employees on the committees. Unit employees had
no independent voice in determining any aspect of the
composition, structure, or operation of the committees.
In fact, as the record demonstrates, the Respondent can
change or abolish any of the committees at will. In our
view, all of these factors, taken together, establish that
the Respondent dominated the administration of the
committees.
Further, the Respondent dominated the formation of
the Freon Committee. Management representatives
made the decision to reorganize the old Freon safety
committee, made plans for structuring the new safety
committee, and called the organizational meeting to es-
tablish the new committee. Management representa-
tives determined who would serve on the committee
by inviting certain unit employees to attend the organi-
zational meeting. Finally, management representatives
chaired the meeting and, along with participating em-
ployees, created the new safety committee and deter-
mined its structure and purpose. Thus, the Respondent
had substantial control over all aspects of the forma-
tion of the Freon Safety Committee.
3. The 8(a)(5) issues
In 1989, the Respondent began to hold quarterly all-
day safety conferences. The stated objective of the
conferences was to ‘‘increase personal commitment,
responsibility, and acceptance of safety as our #1 con-
cern.’’ In 1990, the unit manager of Environmental Re-
sources held a separate conference called ‘‘Safety
Pause’’ for similar reasons. Each conference was struc-
tured according to PEP methods. After supervisors and
managers made opening remarks, the conferees broke
into small groups to discuss specific topics such as
communication of safety information. They were told
that bargainable matters could not be dealt with, that
the conference was not ‘‘a union issue.’’ In the small
groups, employees shared their experiences on the
topic, stated what they thought the ideal situation
would be, and discussed what barriers there were to
reaching the ideal, how to overcome the barriers, and
how to implement improvements. The conferees were
told that if comments or questions came up concerning
bargainable issues or items that required more informa-
tion, these matters should be placed in a ‘‘bucket list’’
to indicate that they could not be considered at the
conference. The resource or facilitator for each group
was responsible for ensuring that bargainable issues
were not discussed. In each small group, conferees ex-
pressed their ideas and their comments were recorded.
The comments and suggestions from the conference
were forwarded to the Central Safety and Occupational
Health Committee for consideration.
The General Counsel maintains that the Respond-
ent’s conduct of these conferences amounts to bypass-
ing the Union and dealing directly with the employees
on mandatory subjects of bargaining in violation of
Section 8(a)(5).16 The judge rejected the General
Counsel’s argument, finding that the conferences con-
stituted permissible communication between an em-
ployer and its employees. We agree with the judge’s
conclusion.
In our view, the conferences amounted to brain-
storming sessions where employees were encouraged
to talk about their experiences with certain safety
issues and to develop ideas and suggestions. The Re-
spondent did not charge the conference with the task
of deciding on proposals for improved safety condi-
tions. As discussed above, this style of brainstorming
does not constitute ‘‘dealing with.’’ Because there is
no ‘‘dealing,’’ there can be no ‘‘direct dealing’’ with
the employees in violation of Section 8(a)(5).
We also note that the Respondent mentioned the
Union at each conference and told the employees that
the conference was not a union matter. It provided a
mechanism for seeking to keep bargainable issues out
of the discussion. The Respondent made clear to the
employees that it recognized the Union’s role and that
bargainable issues should be handled only by the
Union. Although the Respondent thus sought to keep
bargainable issues out of the discussion, we are not
wholly persuaded that it succeeded in doing so. The
subject matter of such discussions was safety in the
workplace, and that subject is a mandatory subject of
bargaining. However, for the reasons discussed above,
we conclude that the Respondent was not directly deal-
897E. I. DU PONT & CO.
17 We note the judge’s finding that in announcing the safety con-
ferences, the Respondent informed employees that 30 volunteers
would attend the first conference but that all employees would be
attending a safety conference in the near future. Thus, there is no
evidence that the safety conferences were representational in nature.
In that regard, here the Employer’s conferences, although more lim-
ited in scope and time, were comparable to the ‘‘committees of the
whole’’ established by the employer in General Foods Corp., 231
NLRB 1232 (1971).
ing with its employees. In addition, the good-faith ef-
fort to separate out bargainable issues and the assur-
ances that the Union had the exclusive role as to such
issues are further indications that there was no under-
mining of the Union’s status as the exclusive rep-
resentative.
Although the above discussion concerning safety
conferences involves only Section 8(a)(5), the safety
conferences are a good example of how an employer
can involve employees in important matters such as
plant safety, without running afoul of Section 8(a)(2)
or Section 8(a)(5) of the Act. Nothing in the Act pre-
vents an employer from encouraging its employees to
express their ideas and to become more aware of safe-
ty problems in their work. In the case of the con-
ferences, the Respondent informed the employees of
the Union’s role and sought to prevent the conference
from considering matters within the scope of the
Union’s duties as the exclusive collective-bargaining
representative of its employees. The Respondent
sought suggestions and ideas from the employees, but
did not structure the conference as a bilateral mecha-
nism to make specific proposals and respond to
them.17
By contrast, in the case of the safety and fitness
committees, the Respondent did not take care to sepa-
rate its activities from those properly within the
Union’s authority. On the contrary, some committees
dealt with issues which were identical to those dealt
with by the Union, and they brought about resolutions
that the Union had attempted and failed to achieve.
The Antiknocks Area Safety Committee got a new
welding shop for a welder who complained of poor
ventilation in the welding shop. The Union’s efforts to
resolve the problem had failed and the welder took his
complaint to the committee instead. The Fitness Com-
mittee developed a recreational area with picnic tables,
a volleyball area, a horseshoe pit, a jogging track, and
sanitary facilities. The Union had sought similar fitness
facilities in negotiations with the Respondent and had
failed. Finally, all the safety committees established in-
centive awards. In the past, the Union had negotiated
with the Respondent when employees had wanted bet-
ter incentive awards for safety. As noted, the Respond-
ent dealt with the committees on these subjects. In
sum, the Respondent bypassed the incumbent labor or-
ganization in violation of Section 8(a)(5) and domi-
nated other labor organizations in violation of Section
8(a)(2).
AMENDED CONCLUSIONS OF LAW
1. Insert the following as Conclusion of Law 3 and
renumber the subsequent paragraphs accordingly.
‘‘3. By unilaterally implementing the proposals of
the committees concerning safety awards and fitness
facilities without affording the Union an opportunity to
bargain, the Company has violated Section 8(a)(5) and
(1).’’
2. Substitute the following for renumbered Conclu-
sion of Law 4.
‘‘4. By discriminatorily prohibiting bargaining unit
employees from using the electronic mail system for
distributing union literature and notices, the Company
has violated Section 8(a)(1).’’
ORDER
The National Labor Relations Board orders that the
Respondent, E. I. du Pont de Nemours & Company,
Deepwater, New Jersey, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Dominating the formation and administration of
the Freon Central Safety Committee a/k/a Fluoro-
chemicals Central Safety Committee and Fluoro-
chemicals Safety and Health Excellence Committee or
any other labor organization.
(b) Dominating the operation and administration of
the following safety and fitness committees or any
other labor organization:
Antiknocks Area Safety Committee
Chambers Works Fitness Committee a/k/a
Chambers Works Recreation/
Activities Committee
Control Unit Safety Committee
Jackson Lab Programs and Publicity Committee
Physical Distribution Safety Committee
a/k/a Environmental Resources
Safety Committee
Programs and Publicity Committee of the
Chambers Works Central Safety and
Occupational Health Committee
Freon Central Safety Committee
(c) Dealing with any of these committees or with
any reorganization or successor.
(d) Bypassing the Chemical Workers Association as
the exclusive collective-bargaining representative of
employees in the appropriate bargaining units.
(e) Unilaterally implementing the proposals of the
committees concerning safety awards and fitness facili-
ties without affording the Union an opportunity to bar-
gain.
898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor 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.’’
1 I also agree with my colleagues’ correction of the judge’s inad-
vertent failures to include a remedy for the domination of the forma-
tion of the Freon Committee and to address the allegations that the
Respondent violated Sec. 8(a)(5) by implementing proposals gen-
erated by the committees without bargaining with the Union. Fur-
ther, I agree with the majority’s correction of the judge’s overbroad
remedy with respect to the use of the electronic mail system for
union notices.
I do not agree, however, with the discussion by Members Oviatt
and Member Raudabaugh of ‘‘the limits of ‘dealing with’’’ in sec.
1 of the majority opinion. See fn. 10, below.
2 309 NLRB 990 (1992) (Devaney, concurring).
3 In finding that DuPont violated the Act in dominating the admin-
istration of the six safety committees, my colleagues state that ‘‘em-
ployee health and safety’’ is a mandatory subject of bargaining. I
agree. With respect to the safety committees, however, I note that
the degree to which bargaining representatives involve themselves in
the details of choosing equipment, procedures, and processes relating
to safety varies widely; moreover, many negotiated management-
rights clauses reserve such choices to management. In this case, the
Union, which is composed entirely of employees at the plant, took
an active role in issues of employee safety; the record indicates that
employees went through the Union respecting matters such as ob-
taining up-to-date equipment (the welding shop), and in 1989 the
Union unsuccessfully proposed the establishment of a joint manage-
ment-labor safety committee to discuss or bargain all health and
safety issues and to investigate injuries and accidents and determine
how to avoid them. The Respondent’s rejection of the proposal out
of hand and failure to offer a single counterproposal on the issue of
a joint safety committee was certainly disingenuous, especially as it
had created and was continuing to create its own employee commit-
tees with virtually the same functions.
The term ‘‘safety,’’ however, is extremely broad and could cover
decisions and policies generally viewed as managerial and which
unions frequently leave to the employer’s discretion, e.g., changes in
lighting in a plant or switching vendors to obtain a more comprehen-
sive maintenance plan to minimize the possibility of employee in-
jury. I do not interpret the holding that, under the unique cir-
cumstances of this case, the Respondent violated Sec. 8(a)(2) by
dominating the administration of the safety committees as a broad
ban on an employer’s bringing employees together with managers,
in other circumstances, to tackle the nuts and bolts of safety issues
or any of the myriad of technical decisions involved in maintaining
a safe, efficient physical plant and in quality control.
(f) Discriminatorily prohibiting unit employees from
using the electronic mail system for distributing union
literature or notices.
(g) In any like or related manner interfering with,
restraining, 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) Completely disestablish the seven committees.
(b) On request, bargain with the Union concerning
plant safety and fitness facilities.
(c) On request, rescind the safety awards and fitness
facilities implemented unilaterally without affording
the Union an opportunity to bargain.
(d) Post at its facilities at Deepwater, New Jersey,
copies of the attached notice marked ‘‘Appendix.’’18
Copies of the notice, on forms provided by the Re-
gional Director for Region 4, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that all allegations con-
tained in the complaint found not to constitute unfair
labor practices are dismissed.
MEMBER DEVANEY, concurring.
1. Introduction
I join my colleagues in adopting the judge’s rul-
ings.1 This case provides an opportunity to shed fur-
ther light on the range of employer-employee com-
mittee involvement permissible under the Act. I write
separately, as I did in Electromation, Inc.,2 in part to
supplement and support my colleagues’ comments, but
also to emphasize that the conduct the majority finds
unlawful is also unlawful under my narrower and more
historically focused perspective. Like the judge and the
majority, I reject the Respondent’s characterization of
the six area safety committees and the Fitness Commit-
tee at DuPont’s Deepwater plant as management tools
the operation of which was outside the Union’s scope
and to which the employee members brought only
their individual interests and concerns rather than those
of their fellow employees. I find ample basis in the
record for Judge Ladwig’s conclusion that the Parties-
in-Interest were statutory labor organizations and that
the Respondent’s conduct with respect to them violated
Section 8(a)(2) and Section 8(a)(5). I further find that
the Respondent attempted to use the committees to
freeze the Union out of areas in which it had a vital
and legally recognized interest: employee health and
safety3 (including onsite facilities for fitness), bonuses,
and employee grievances over safety. As a practical
matter, the Respondent’s conduct as to the safety and
fitness committees comes close to a textbook example
of an employer’s manipulation of employee commit-
tees to weaken and undermine the employees’ freely
chosen exclusive bargaining agent. By contrast, I find,
as do my colleagues, that the ‘‘safety conference’’ or
‘‘safety pause’’ meetings did not violate the Act; em-
ployees were encouraged there to raise their own is-
sues and propose their own ideas while ‘‘bargainable’’
issues were tabled. The Respondent’s different conduct
in the two employee participation settings provides a
899E. I. DU PONT & CO.
4 Brief amicus curiae of the Labor Policy Association in support
of the Respondent, pp. 2–3.
I recognize the importance of the concerns expressed by manage-
ment spokespersons and the negative effects of a perception that,
with respect to employee participation programs, employers’ hands
are tied under Sec. 8(a)(2) and the Board’s interpretation of it. The
reality, however, should allay such concerns: 8(a)(2) complaints con-
stitute a very small percentage of the General Counsel’s caseload.
Between fiscal year 1990 and fiscal year 1992, the last year for
which complete figures are available, complaints alleging violations
of Sec. 8(a)(2) constituted approximately 0.21 percent of the total
number of complaints issued by the Office of the General Counsel.
In fact, out of over 9300 complaints issued in that 3-year period,
only 20 involved allegations of Sec. 8(a)(2). 5 NLRB v. Cabot Carbon Corp., 360 U.S. 303, 313 (1959).
useful contrast that helps to outline the boundaries of
Section 8(a)(2) more clearly.
In Electromation I expressed the view that Section
8(a)(2), read together with the definition of ‘‘labor or-
ganization’’ in Section 2(5), does not proscribe broad
areas of employer-employee communication; that Con-
gress targeted certain well-defined evils in enacting
Section 8(a)(2); and that the Board should focus en-
forcement of the provision on the specific evils Con-
gress had targeted. In this case, as in Electromation,
amici curiae have argued that a conclusion that
DuPont’s handling of its safety and fitness committees
violated Section 8(a)(2) depends on an ‘‘indiscrimi-
nate’’ application of the prohibition against employer-
dominated unions that would ‘‘thwart the myriad ef-
forts being undertaken by labor unions, employee
groups, and employers to develop human resource
policies to meet the challenges of the 21st Century.’’4
In my view, such characterizations are not a fair de-
scription of the Board’s holding. As in Electromation,
the record here demonstrates that where the Board has
found an 8(a)(2) violation, it has been faced with em-
ployer abuse of an employee committee to the det-
riment of the Section 7 right to choose the bargaining
representative; where, however, the record indicates
that DuPont established an employee organization that
acknowledges that the choice of the bargaining agent
resides solely with the employees, the Board has dis-
missed the complaint allegations.
I bring the same approach outlined in my concur-
rence in Electromation to the facts here. I read Section
8(a)(2)’s legislative and precedential history as leaving
employers significant freedom, through interaction with
groups of more than one and fewer than all employees,
to involve rank-and-file workers in matters formerly
seen as management concerns, to call on employees’
full ability and know-how, and to increase their enthu-
siasm for and commitment to quality and productivity
through implementing recent developments in worker
effectiveness training and empowerment, whether these
developments occur through hierarchical employer-
structured entities or through ‘‘democratization’’ of the
workplace, whereby employees become, in a sense,
their own supervisors and managers. In Electromation,
I noted that the early history of the Act, although vig-
orously condemning sham unions that prevented em-
ployees from exercising their right to choose their own
bargaining representative, was silent as to organiza-
tions through which employees provide input on
‘‘problems of mutual interest’’ such as ‘‘safety; in-
creased efficiency and production; conservation of sup-
plies, materials and equipment; encouragement of inge-
nuity and initiative.’’5 On the other hand, I acknowl-
edged then, and I do so here, that employer-controlled
‘‘sham unions,’’ which Congress intended to outlaw in
passing Section 8(a)(2), are by no means extinct, al-
though they may now appear in guises quite different
than those of 1935. Thus, although Section 8(a)(2) is,
in my view, narrower in application than some com-
mentators have argued, it does prohibit a particular
type of employer conduct.
In analyzing the issues presented by the facts of this
case, which contains both lawful and unlawful con-
duct, my starting point and assumptions are somewhat
different from my colleagues.’ My reading of the
briefs here and in Electromation indicates that, for
many amici, concern over Section 8(a)(2)’s possible
interference with the implementation of employee in-
volvement programs centers on the legal status of em-
ployee committees, such as the six safety committees
and the fitness committee here, that are the creation
and tool of management. Accordingly, my focus will
be on employee groups that are established and domi-
nated by the employer and on the fundamental choices
Section 8(a)(2) requires employers to make with re-
spect to such groups. I find no statutory bar to such
committees or to employer domination of them, as
long as the committees are not labor organizations or,
relevantly, ‘‘employee representation committee[s] or
plan[s] in which employees participate and which
exist[] for the purpose . . . of dealing with employers
concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or conditions of work.’’ As
in Electromation, then, I answer questions concerning
the effect of Section 8(a)(2) on employee involvement
programs as follows: Section 8(a)(2) should not create
obstacles for employers wishing to implement such
plans—as long as such programs do not impair em-
ployees’ free choice of a bargaining representative.
Section 8(a)(2) does not ban agenda-setting, estab-
lishing or dissolving committees, or mixing managers
and statutory employees on a committee. It does, how-
ever, outlaw manipulating such committees so that
they appear to be agents and representatives of the em-
ployees when in fact they are not. Thus, an employer
using employee committees lawfully will have chosen
to keep the committees in proper perspective as man-
agement tools. It will not accord silent, partial, and
revocable recognition to a committee by bargaining (or
900 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 This factual background is intended only to provide some of the
key facts on which my analysis is based. I fully agree with the
judge’s findings of fact, and I have not attempted to present an ex-
haustive picture here.
7 Deepwater employees were forbidden to use electronic mail for
union business or messages.
‘‘dealing’’) with it and it will not usurp the employees’
exclusive right to choose a representative by such bar-
gaining or dealing. In this case, I find that the Re-
spondent did manipulate the safety and fitness commit-
tees to inhibit employees’ free choice. The Respondent
undermined the freely chosen bargaining agent by es-
tablishing, tacitly recognizing, and bargaining over
mandatory subjects with employer-controlled employee
representation committees. Thus, I find that the Re-
spondent’s domination of the operation and administra-
tion of the safety and fitness committees and the by-
passing of the Union violated Section 8(a)(2) and (5).
The lesson to be gleaned from the violations found
and the allegations dismissed here is simply that, under
current law and precedent, employers cannot establish
and use employee committees with the flexibility, dis-
cretion, and authority inherent in the creation and use
of a management tool and lead employees to believe,
either directly or indirectly, that the ‘‘management
tool’’ is the employees’ tool.
2. Factual background6
The DuPont Deepwater plant employs over 3500
employees and produces over 750 chemical products.
The Union, the membership of which is limited to
Deepwater employees, has represented clericals and
production and maintenance employees at the facility
for 50 years.
Until 1987, the Deepwater plant’s safety program
was administered through area safety committees com-
posed solely of managerial personnel. The committees
planned monthly safety meetings in the various areas
of the plant, and exercised the authority to award com-
pensation such as cash, tools, shirts, and the like to
employees as an incentive to safe work habits. Em-
ployees occasionally expressed dissatisfaction with the
small value of the incentives; the Union successfully
negotiated increases in the value of the items several
times.
In 1984, the Respondent instituted a personal effec-
tiveness program for employees (PEP), which encour-
aged decision-making through consensus. The Re-
spondent used PEP as its organizing principle when, in
1987, it revamped its safety committees to include unit
employees as members. PEP provides a parliamentary
structure for meetings and goal-setting in which every
group has a ‘‘facilitator’’ (chairperson) and a ‘‘re-
source’’ (adviser) who, between them, exert extensive
control over the group’s agenda and the conduct of the
meetings and one of whom is invariably a member of
management. PEP requires that all group members, in-
cluding the managerial members, agree on any deci-
sion made by the group, whether the decision be to
clarify policy, to propose a new way of handling a
problem, or to decide on a problem-solving strategy.
Thus, as the judge found, no employee proposals could
leave the committee without the assent of the manage-
ment members.
The management/employee area safety committees
operate independently of each other, but share some
features: managers serve on each committee; manage-
ment decides which employees who volunteer for the
committees would serve on them; the continuation of
the safety committees is dependent on management,
which can abolish them at any time; employee mem-
bers serve on the committees for indefinite periods,
without rotations; and management provides all funds
for the activities of the committees. The Respondent
also provides meeting places and equipment, pays the
employee members for their time, and has authorized
the committees to use electronic mail to communicate
with employees.7
The committees’ activities differ, despite their com-
mon characteristics. For example, the Central Safety
Programs Committees has developed monthly safety
information programs and established safety awards.
The Antiknocks Area Safety Committee has urged unit
employees to inform committee members of their safe-
ty problems and touted the committee as ‘‘the fastest
way to get things fixed’’; the committee took em-
ployee complaints and concerns to management for
correction. The Antiknocks Committee is one of the
most successful and efficient of the employee commit-
tees. It has arranged for improvements in the procedure
for handling welders’ protective clothing and secured
a new, better-ventilated welding shop for a welder
after the Respondent denied the Union’s repeated at-
tempts to get the welder’s complaints about the ven-
tilation in the shop corrected. The committee also,
often on information from unit employees, got potholes
repaired, personnel assigned to clean air hoses, and
new procedures in the handling of safety garments put
into place, to name only a few of the goals it achieved.
When it learned of or observed safety hazards, the
Antiknocks Committee tried to correct some situations
itself; when it could not, a member presented the prob-
lem to the supervisor or manager in the area on the
committee’s behalf. If the problem was not resolved
there, the committee would pursue it to higher levels
of plant management.
All of the safety committees decided on safety
awards to employees in recognition of or to encourage
safe work habits. These awards ranged in value from
the nugatory (e.g., sunglass holders) to the substantial
(e.g., breakfasts, dinner dances, evenings on the town,
corduroy jackets, cash awards of $50 and $25, and
901E. I. DU PONT & CO.
8 Even under the Respondent’s cited standard, a finding of domina-
tion is virtually inescapable here. The Respondent cites Hertzka &
Knowles v. NLRB, 503 F.2d 625, 630 (9th Cir. 1974): ‘‘the question
is whether the organization exists as the result of a choice freely
made by the employees, in their own interests and without regard
to the desires of their employer . . . or whether the employees . . .
supported the organization . . . because they knew their employer
desired it . . . .’’ In this case there is no question that the organiza-
tions did not exist as the result of the employees’ choice. The orga-
nization which the employees had empowered to speak for them on
the issues of safety and health was the Union. For better or worse,
the fact that management can pick the employees who participate,
countermand any decision of a committee, and dissolve the em-
ployee committee at will implies, as a necessary corollary, that em-
ployees are not exercising free choice over the operation of the com-
mittee.
$100 savings bonds). Employees on the committees
pressed for larger awards for their fellow employees;
the committees also sought higher awards from man-
agement. During the operation of the committees, the
Respondent never bargained with the Union over the
amounts of the safety awards.
In 1989, in the course of contract negotiations, the
Union proposed that a joint labor-management health
and safety committee be established to discuss and ne-
gotiate such issues and to investigate and attempt to
prevent accidents. The Union proposed 21 items con-
cerned with employee safety. The Respondent ‘‘com-
mended the Union for its interest in the subject,’’ but
told the Union that discussions on health and safety
should take place outside contract bargaining. When
the Union insisted that bargaining on health and safety
issues was part of contract negotiations, the Respond-
ent rejected the Union’s proposals, characterizing them
as ‘‘not . . . additive to our business.’’ The Respond-
ent offered no counterproposal on the subject of a safe-
ty committee.
Management initiated the formation of the Fitness
Committee in late 1989 or early 1990, with employee
members chosen to represent various areas of the
plant. The Respondent admits that the manager in
charge told an employee member that the committee
sought a ‘‘representative’’ from each area, and the
judge credited an employee member’s testimony that
he asked why certain employees were on the com-
mittee and was told that their presence, regardless of
their personal interest in fitness, gave the committee a
more representative cross-section of plant employees.
The Union was not notified of the committee’s forma-
tion. Before the committee was formed, the Union had
unsuccessfully proposed the establishment of an em-
ployee fitness facility comparable to the one at another
DuPont plant. As the judge found, the Respondent re-
jected the proposal on the grounds that it was not in-
terested. In a memo dated September 26, 1989, a man-
agement assistant recommended that the employee ac-
tivities budget be increased $10,000 for employee
events. The memo stated that the Respondent’s prac-
tice of not funding employee teams ‘‘just drives em-
ployees to the Union for assistance—I would like to
change that.’’
In January 1989 the Respondent approved the Fit-
ness Committee’s proposal for outdoor facilities at a
former parking lot and budgeted money for a jogging
track. The minutes of the committee’s May 11, 1989
meeting indicates that the Respondent rejected an em-
ployee member’s proposal for tennis courts as too ex-
pensive. An employee member pressed for tennis
courts through the electronic mail system in a June
1989 message sent to plant managers and other man-
agement personnel and committee members. In the
summer of 1989, the Respondent added picnic tables
and bathrooms. When employee committee members
proposed a horseshoe pit and a volleyball court, the
Respondent implemented both proposals. In January
1990 employee member Ebert proposed the addition of
an outdoor pavilion and two tennis courts to the com-
mittee. The committee agreed and a manager on the
committee suggested that Ebert make a presentation to
plant management for funding. Ebert made the pro-
posal, which was denied on the grounds that the budg-
et contained no funds for the projects.
3. Did the Respondent dominate the
administration of Deepwater’s six safety
committees and the fitness committee?
I agree with my colleagues and the judge that the
Respondent dominated the operation of the seven com-
mittees. The Respondent started the committees; the
suggestions, proposals, and actions of the committees
depended on the approval of the management mem-
bers; the implementation of such proposals and plans
depended entirely on the Respondent’s will; the Re-
spondent maintained complete control over the contin-
ued existence of the committees, and, in some cases,
set the agendas for the committees. DuPont’s portrait
at the hearing and in its brief of committees formed
solely as management tools to solve narrow manage-
ment problems, some of which, in fact, had grown out
of previously all-management structures virtually con-
cedes this ‘‘domination.’’8 Further, although I am open
to persuasion by the right set of facts, I find it difficult
to conceive of a situation where the very existence of
an employee committee depends on the will of the em-
ployer that would not merit a finding that the employer
‘‘dominated’’ the committee.
I hasten to add, however, that an employer’s domi-
nation of the administration of an employee committee
is not, taken alone, an unfair labor practice. In my
view, the concerns voiced by amici about the effect of
Section 8(a)(2) on legitimate employee participation
plans relate almost entirely to committees whose use-
fulness depends on a type of employer domination, in
the sense that an employer brings employees together
902 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 See 309 NLRB at 994 fn. 20 (Devaney, concurring).
10 I am uncomfortable with the majority’s discussion of the mean-
ing of ‘‘dealing with,’’ especially here, where the higher level of in-
volvement, bargaining, is so clearly present. In my view, bargaining
is a bilateral process, but ‘‘dealing with’’ is not necessarily bilateral,
as employers can use an ostensibly bilateral process as a strictly uni-
lateral one by appearing to consider employee proposals without ac-
tually considering them. I agree that a ‘‘suggestion box,’’ in which
employees acting as individuals, with or without managers, come up
with a range of suggestions and recommendations for management
to consider would not be bargaining or ‘‘dealing with.’’ Similarly,
a brainstorming group of employees who work together, with or
without managers, to come up with suggestions and recommenda-
tions for management, is not ‘‘dealing with.’’ In both situations, bar-
gaining or ‘‘dealing with’’ is not present in part because the employ-
ees have no expectation other than that management will consider
their suggestions and they understand that they are acting on man-
agement’s behalf in participating. But I disagree with the majority
when it characterizes a proposal and its immediate acceptance as not
constituting bargaining. In my view, that two-step process can in-
deed constitute bargaining, and under some circumstances some
might say it is bargaining at its most successful and efficient.
Rather than attempting to outline the differences between ‘‘dealing
with’’ and ‘‘bargaining’’ in the abstract, I find it instructive to return
to the legislative history. After hearing the testimony of witnesses
in the 1934 and 1935 Wagner Act hearings before the Senate Labor
and Education Committee that the ‘‘bargaining’’ going on between
to work on and, if possible, to solve, management-des-
ignated problems, but retains the flexibility to dissolve
the committee when its effectiveness has ended, to
start it or another up when needed again, to set its
agenda, and to include managers and supervisors on it
if these factors would increase the committee’s effec-
tiveness.
Further, the success of many types of employee in-
volvement programs depends on persuading employ-
ees—or freeing them—to turn their full attention and
intelligence to the solution of management problems;
to forget, in a sense, for the duration of the commit-
tee’s work that they have their own separate interests
in the workplace and to do the employer’s work. Em-
ployers ‘‘dominate’’ employees every time a super-
visor or manager issues work instructions to statutory
employees; employers ‘‘dominate’’ groups of employ-
ees every time a group is instructed to perform a task.
Without more, I see no unlawful behavior or threat
to employees’ Section 7 rights when employers form
employee committees with management members, pro-
vide such committees with funds, time, space, and
compensation, assign the committees agendas, and dis-
solve them at will. Such committees need not interfere
with the employees’ exclusive right to choose a rep-
resentative—if they do not pretend to represent the in-
terests of employees as distinct from those of the em-
ployer. Under the statute, an employer violates Section
8(a)(2) by ‘‘dominating’’ only one of the many types
of employee groupings or committees that employers
have found valuable: a labor organization dealing with
the employer with respect to conditions of employ-
ment. In my view, the crucial issue in every case
where an employee committee is alleged to violate
Section 8(a)(2) is whether the employer has usurped
the exclusive right of the employees to choose their
own representative to deal with the employer with re-
spect to conditions of work. As I noted in
Electromation,9 I would interpret evidence that an em-
ployer represented a dominated committee to employ-
ees as its exclusive agent and made it clear that em-
ployees who served on it did so to further the employ-
er’s managerial goals as indications that the committee
in question was not a labor organization dealing with
the employer over conditions of employment.
I find the contrast between the operation of the six
safety committees and the ‘‘safety conferences’’ and
‘‘safety pauses’’ instructive. The latter two types of
meetings were, like the seven committees discussed
above, structured according to the PEP principles and
employees were divided into small groups to work on
specific topics relating to safety. The employees were
informed that bargainable issues could not be dis-
cussed, and when bargainable issues arose, they were
placed on a ‘‘bucket list’’ and were not discussed dur-
ing the meetings. I see little distinction, with respect
to the issue of employer domination, between the safe-
ty committees discussed above and the safety con-
ferences here. In all cases, the Respondent created the
employee groups and included supervisors in them.
The safety conferences and pauses are, however, quite
different from the safety committees in a crucial re-
spect: the Respondent did not establish the safety con-
ferences and pauses as representatives of the employ-
ees and did not bargain or ‘‘deal with’’ them over
mandatory subjects of bargaining; in fact, the Respond-
ent took pains to inform the employees who partici-
pated that the conferences were not a substitute for
union representation and that bargainable issues could
not be discussed. Thus, the status of the safety con-
ference and pauses remained clear: they were manage-
rial tools for solving managerial problems, and there
was no effort to make them appear to be acting on be-
half of the employees. Here the Respondent made the
right choices. It used ‘‘employee committees’’—the
safety conferences and pauses—that were management
tools as management tools, without tacitly according
them the status of bargaining agents in their areas of
concern. Thus, there was no usurpation of the employ-
ees’ exclusive right to designate their own representa-
tive.
4. Did the Respondent ‘‘deal with’’ the dominated
employee committees over mandatory subjects
of bargaining?
In my view, it is unnecessary to reach the question
whether DuPont ‘‘dealt with’’ the dominated commit-
tees, inasmuch as the record clearly demonstrates that
the Respondent bargained with those entities.10 As the
903E. I. DU PONT & CO.
employers and their ‘‘employee representation committees or plans’’
was a sham that rarely if ever resulted in a fairly negotiated contract,
Congress found it necessary, in outlawing company unions, to word
the bill to cover the false bargaining between the powerless company
unions and the employers that created them. See Electromation,
supra, 309 NLRB at 990 fn. 4 (Devaney, concurring).
11 I would require that an employee committee act in a representa-
tive capacity in order to be found a statutory labor organization.
12 Thus, although I formulate the issue in different terms, I agree
with the majority that, with respect to a finding that an employer
bargained with or ‘‘dealt with’’ a committee, it does not matter in
the final analysis whether the bargaining or ‘‘dealing’’ occurred be-
tween employees and managers on the committee or between em-
ployees and managers outside the committee. Both situations usurp
employees’ right to choose a bargaining representative that is exclu-
sive and loyal. In circumstances where employees bargain or ‘‘deal’’
with manager/committee members with the right to alter or veto
their proposals, the employer has put itself on both sides of the bar-
gaining table and the committee is not the loyal representative of
employees. Where employee committees bargain or ‘‘deal with’’
mangers on the staff level, the employer has tacitly recognized a bar-
gaining agent not chosen by the employees. As in Electromation
(supra; Devaney, concurring), both forms of usurpation occurred
here.
judge found, for example, employees on each of the
safety committees sought and obtained safety awards
of greater value for employees who satisfied certain
goals. Further, as in Cabot Carbon, the safety commit-
tees resolved employee grievances respecting safety,
even taking some grievances to the plant manager level
and above. As described above, the success of the
Antiknocks Committee in alleviating the welder’s dif-
ficulties with the ventilation in his shop by persuading
the Respondent to move the shop; the Antiknocks
Committee’s self-advertisement as the quickest way to
get safety and health complaints resolved; the Re-
spondent’s provision of a fitness facility through work-
ing with the Fitness Committee; and the presentation
to higher management of proposals regarding a tennis
court and outdoor pavilion by a unit employee com-
mittee member constitute bargaining over mandatory
subjects of bargaining. Other committees, such as the
Central Safety Committee and Jackson Lab Commit-
tees, did not handle grievances or solve employee-gen-
erated problems. These committees were generally re-
sponsible for establishing and disseminating safety pro-
grams. If these committees had confined their activities
to such programs, I do not believe that they would
have violated Section 8(a)(2). However, these commit-
tees also established safety incentives and awards in
connection with these programs and distributed them
to employees. In some cases, bargaining went on with-
in the committees as employee members sought larger
awards for their fellow employees. This common
thread of bargaining over employee compensation runs
through each of the committees. As the Union had pre-
viously bargained over such matters, the Respondent’s
recognition of the committees as the employees’ bar-
gaining agent with respect to safety bonuses is espe-
cially egregious, in that it weakened the selected rep-
resentative both in fact and in the eyes of the employ-
ees and substituted the employer-controlled committee
for that elected by the employees.
5. Are the Dupont ‘‘safety’’ and ‘‘fitness’’
committees ‘‘employee representation committees
or plans’’ as Congress understood those terms
in 1935?
When an employer-sponsored group is at issue, the
‘‘employee representation committee or plan’’ is the
applicable category in Section 2(5)’s definition of a
labor organization. In my view, as I discussed more
extensively in Electromation, supra, the statutory for-
mula ‘‘employee representation committee or plan’’
was, for Congress in 1935, a term of art describing a
‘‘sham’’ union through which employers usurped em-
ployees’ exclusive power to choose a bargaining rep-
resentative by establishing a ‘‘representative’’ for the
employees and dealing with that ‘‘representative.’’ In
this case, I find that the six safety committees and the
fitness committee are such ‘‘employee representation
committee[s] or plan[s].’’ In my view, three key find-
ings by the judge, all of which I find well supported
by the record, mandate such a finding. First, the com-
mittees were clearly—and improperly—vested by man-
agement with the authority to act as agents for the em-
ployees.11 Second, DuPont caused each committee to
become a structure for negotiating employee com-
pensation in the form of safety bonuses, and in the
case of some of the committees, other benefits that
were clearly mandatory subjects of bargaining, with
the purpose and effect of excluding and weakening the
Union, which had previously negotiated these matters.
Third, DuPont further usurped the employees’ exclu-
sive right to a loyal bargaining agent by salting the
committees with members from managerial or super-
visory ranks with the power to veto any employee sug-
gestion or proposal. Thus, Dupont was on both sides
of the bargaining table: instead of receiving proposals
from a bargaining agent strictly loyal to the employees,
Dupont received proposals ‘‘pre-negotiated’’ by the
managerial committee members.12 Finally, although I
do not consider this factor essential to a finding of an
8(a)(2) violation, I find the clear showing of union ani-
mus and the deliberate bypassing and undercutting of
the Union here to clinch the matter: the six safety
committees and the fitness committees were ‘‘em-
ployee representation committees or plans’’ like those
condemned in 1935, albeit more limited in subject
matter.
Thus, I agree with my colleagues that the Respond-
ent violated Section 8(a)(2) and (5) in its handling of
the seven committees, and that it did not violate the
Act in its handling of the safety conferences or safety
pauses. In my view, the difference between the two
904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sets of circumstances is that with respect to the safety
and fitness committees, the Respondent tried to have
it both ways: it tried simultaneously to maintain con-
trol, discretion, and flexibility in its use of the commit-
tees and also to create the illusion of an employee rep-
resentative that undercut and weakened the chosen rep-
resentative. Although I believe that Section 8(a)(2)
provides employers with somewhat greater scope for
utilizing employee committees than do my colleagues
in the majority, the Respondent’s conduct here is
plainly unlawful under my practical and historically
derived standard.
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 dominate the formation or administra-
tion of the Freon Central Safety Committee a/k/a
Fluorochemicals Central Safety Committee and
Fluorochemicals Safety and Health Excellence Com-
mittee or any other labor organizations.
WE WILL NOT dominate the operation and adminis-
tration of the following committees or any other labor
organizations:
Antiknocks Area Safety Committee
Chambers Works Fitness Committee a/k/a
Chambers Works Recreation/
Activities Committee
Control Unit Safety Committee
Jackson Lab Programs and Publicity Committee
Physical Distribution Safety Committee
a/k/a Environmental Resources
Safety Committee
Programs and Publicity Committee of the
Chambers Works Central Safety and
Occupational Health Committee
Freon Central Safety Committee
WE WILL NOT deal with these committees or their
successors.
WE WILL NOT bypass the Chemical Workers Asso-
ciation as your bargaining agent.
WE WILL NOT unilaterally implement these commit-
tees’ proposals concerning safety awards and fitness
facilities without affording the Union an opportunity to
bargain.
WE WILL NOT discriminatorily forbid you to use the
electronic mail system to distribute union literature or
notices.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL completely disestablish the seven commit-
tees.
WE WILL bargain on request with the Union con-
cerning plant safety and fitness facilities.
WE WILL, on request, rescind the safety awards and
fitness facilities implemented unilaterally without af-
fording the Union an opportunity to bargain.
E. I. DU PONT DE NEMOURS & COM-
PANY
Scott C. Thompson and Richard Wainstein, Esqs., for the
General Counsel.
Hastings S. Trigg Jr., Esq., of Wilmington, Delaware, for the
Respondent.
Theodore M. Lieverman, Esq., of Haddonfield, New Jersey,
for the Union.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge. These
consolidated cases were tried in Philadelphia, Pennsylvania,
on June 10–14 and 17–20, 1991. The charges were filed
March 19, April 2 and 18, and July 20, 1990, and consoli-
dated complaints were issued March 20 and April 22 and 25,
1991 and amended at the trial (Tr. 5–8, 1933).
The Company created (or reorganized) at its Deepwater,
New Jersey plant, six safety committees and one fitness com-
mittee in the pattern of its quality of work life committees,
which are not involved in this proceeding. The basic question
is the legality of these seven employer-employee committees.
The General Counsel and the Union contend that the com-
mittees are company-dominated labor organizations and that
the Company is unlawfully bypassing the Union in dealing
with them. The Company denies that the committees deal
with it as representatives of the employees, contending that
they function ‘‘only as a management vehicle to enhance the
safety of employees through labor-management communica-
tion or to carry out similar management functions.’’
The primary issues are (a) whether the Company’s affirm-
ative defenses have merit, (b) whether the safety and fitness
committees are labor organizations, and (c) whether the
Company, the Respondent:
(1) Dominated the formation of one of the safety commit-
tees.
(2) Dominates the administration of all seven committees.
(3) Bypasses the Union by dealing with the committees
concerning working conditions.
(4) Discriminatorily denies employees’ use of the plant’s
electronic mail for union literature and notices.
(5) Bypassed the Union and dealt directly with employees
during safety conferences and a ‘‘Safety Pause.’’
(6) Adjusted employee grievances without affording the
Union an opportunity to be present, violating Section 8(a)(1),
(2), and (5) of the National Labor Relations Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
905E. I. DU PONT & CO.
filed by the General Counsel, the Company, and the Union,
I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company, a corporation, manufactures chemicals at
its large Chambers Works chemical plant in Deepwater, New
Jersey, where it annually receives goods valued over $50,000
from outside the State. It admits and I find that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor
organization within the meaning of Section 2(5).
II. ALLEGED UNFAIR LABOR PRACTICES
A. Safety and Fitness Committees
1. Background
a. Prior case
The legality of the Company’s Jackson Lab Design Team
was litigated in a prior case before Administrative Law Judge
Arline Pacht. The Design Team was one of the quality of
work life committees that the Company created in its
OE/PEP employee-involvement program. As discussed later,
the Company relies in its brief (at 121–128) on allegations
in this prior case to support its Jefferson Chemical affirma-
tive defense. It also relies (at 139) on the judge’s conclu-
sion—that employee members of the Design Team ‘‘were
encouraged and did act in a representative capacity’’—in its
argument that the safety and fitness committees do not func-
tion as representational bodies.
On January 30, 1990, the Board, in the absence of excep-
tions, adopted Judge Pacht’s findings and conclusions. E. I.
du Pont & Co., Case 4–CA–16801, JD–208–89 (G.C. Exh.
2A). The Board ordered the Company to cease and desist
from dominating the ‘‘formation, operation and administra-
tion’’ of the Jackson Lab Design Team or ‘‘any other labor
organization’’ and from ‘‘Bypassing the Union.’’ The Board
also ordered the Company to ‘‘completely disestablish the
Design Team.’’
The adopted findings and conclusions in the judge’s De-
cember 22, 1989 decision include the following.
Over the Union’s repeated objections, the Company in the
spring of 1987 created the Design Team ‘‘to function as a
problem-solving body . . . to identify and propose solutions
to problems in the work place’’ and ‘‘to initiate changes
which would improve [Jackson Lab’s] working environment
and increase individual job satisfaction.’’
At the time, from the fall of 1985 to July 1987, all 2200
or 2300 bargaining unit employees at the plant were being
given a 11-day PEP training course. PEP (Personal Effective-
ness Process) is the employee version of MTP (Management
Training Process). The Company had begun implementing
MTP and OE (Organizational Effectiveness) in August 1984.
The objective, in part, was to promote ‘‘a lot of [employee]
involvement and wide participation throughout the organiza-
tion.’’
The Company ‘‘determined the Design Team’s member-
ship by hand-picking’’ volunteers to serve. The Design Team
was ‘‘wholly dependent’’ on the Company for financial sup-
port.
Guidelines in the training material contained recommenda-
tions for avoiding ‘‘special problems’’ that could be posed
when implementing OE/PEP ‘‘at unionized sites.’’ One rec-
ommendation was to ‘‘Ensure management control,’’ with
‘‘authority and responsibility for decision making’’ remain-
ing ‘‘with management, for they are accountable for the re-
sults.’’ Another was that ‘‘Any union officer who may be
asked to participate will . . . do so as an individual.’’
Two of the other recommendations were to ‘‘Assure that
all participants will be offering their thoughts as individuals
and will be speaking only for themselves’’ and to ‘‘Maxi-
mize the number of participating employees . . . to avoid the
appearance of permanent ‘representative’ groups.’’ Yet min-
utes of Design Team meetings indicated that the voluntary,
nonelective employee members ‘‘were expected to represent
their co-employees in the areas in which they worked.’’
The judge concluded that the record in that case provided
‘‘ample evidence that the members of the Design Team were
encouraged to and did act in a representative capacity’’ and
were urged ‘‘to find problems and devise solutions’’ to be
presented to the Jackson Lab director. Also, ‘‘apart from
[dealing with management by] transmitting formal pro-
posals’’ to the chief executive officer, ‘‘the rank and file
members of the Design Team ‘dealt with’ management in the
course of their meetings,’’ because half the Design Team
were members of management.
Judge Pacht also concluded: ‘‘By exhorting the Team to
propose solutions to workplace problems, and by adopting
the Team’s proposals before putting them on the bargaining
table, [the Company] created and fostered an organization
whose purpose and functions competed with those of the
Union . . . . Moreover, by giving the Team favored treat-
ment, management signalled to the employees that this rival
entity could bring about change more effectively than the
designated bargaining agent.’’
On December 29, 1989, the plant manager (Works Man-
ager Richard Stewart), acknowledging receipt of the decision,
stated in an electronic mail message to all employees (C.P.
Exh. 4):
The case only involved the Jackson Lab Design
Team, a small group formed to give employees an op-
portunity to improve their work environment, thereby
improving productivity and competitiveness of the Lab-
oratory.
. . . .
We do not believe the decision is well-founded nor
is it representative of the way we need to operate a Re-
search Laboratory today. At no time did Chambers
Works Management or the Design Team ignore or
hinder the bargaining process. . . .
Management feels employees should have input con-
cerning their jobs and the daily operation of the plant.
There will be no change in our efforts to encourage and
support your active participation in the running of our
business here at Chambers Works.
906 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
b. Safety program at Chambers Works
For years before the advent of the OE/PEP program, the
Company operated its safety program with management com-
mittees.
The Chambers Works Central Safety and Occupational
Health Committee (Central Safety Committee), the policy-
making body on safety matters (R. Exhs. 2, 41; Tr. 45), had
a number of subcommittees, including the Programs and
Publicity Committee (Central Safety Programs Committee).
That subcommittee planned the monthly area safety meetings
(Tr. 90, 1822–1823). The Jackson Lab Central Safety Com-
mittee (Tr. 604; G.C. Exh. 3B at 4) also had a programs and
publicity subcommittee (Jackson Lab Programs Committee).
Management personnel served on the various committees and
conducted the safety meetings.
Through the years the Company gave employees door
prizes, other prizes in safety-meeting drawings and safety
contests, and awards for safety milestones. The evidence
shows that these gifts included coffee and doughnuts, change
purses, coffee mugs, key chains, small tool kits, and T-shirts
(Tr. 187–188, 367, 394, 495, 685–686, 1620–1621, 1637; R.
Exhs. 19, 48, 49). They also included a $25 savings bond in
1978 (R. Exh. 16) and a $20 gift certificate in 1980 (R. Exh.
17). The evidence does not disclose what other safety awards
were (Tr. 188, 367, 394, 1599–1600, 1638–1640).
Area Representative Arthur Maurizio credibly testified (Tr.
367) that jackets had not been given (contrary to Union
President William Golt’s recollection, Tr. 495), but are now
being given (after the PEP-style safety committees were
formed). Former President Leslie Morris credibly testified
(Tr. 1637) that ‘‘Pizza parties really came into view as a re-
sult of the PEP program.’’ Before then, coffee and doughnuts
were given for ‘‘small celebrations in the areas when they
reached various milestones.’’ Employee David Muntz vague-
ly recalled (Tr. 723) that ‘‘something like’’ pizza was given.
At times, when employees complained to the Union that
‘‘the safety prizes were becoming insignificant in value, or
they were being reduced in value,’’ the Union would bargain
with the Company in regular labor-management executive
meetings for ‘‘a greater prize for [the employees’] accom-
plishments.’’ (Tr. 1626–1627, 1639–1640.) On occasion,
awards given by management at the business unit level were
discussed by the business unit manager and the Union’s area
representative (Tr. 1640–1641).
In 1984, when the employee-involvement program began,
the Company gave $400 gift certificates to three winners in
a contest on Family Awareness of Unsafe Acts (R. Exh. 47).
Between then and the trial, the Company gave some expen-
sive and different kinds of safety awards.
c. Safety and fitness committees formed
Beginning about 1987 the Company created (or reorga-
nized) the following six safety committees and one fitness
committee in the pattern of its PEP-style quality of work life
committees (Tr. 203–204, 211–214, 217–219, 505–507, 807;
R. Exh. 9). All seven of the committees are alleged to be un-
lawfully dominated labor organizations.
The Antiknocks Area Safety Committee (also called
Petchem Area Safety Committee) was created in the summer
of June 1987 (R. Exh. 7; Tr. 159–160).
The Central Safety Programs Committee was reorganized
in 1988 and again in 1989, becoming a PEP-style committee
with 20 to 25 members (G.C. Exh. 5 at 85; Tr. 62, 1458–
1459). It had operated as a management committee until
1984, when it accepted three employees (William McKie,
Oscar Mulford, and James Scott) as members (R. Exh. 19;
G.C. Exh. 4; Tr. 536–537).
The Chambers Works Fitness Committee (also called
Chambers Works Recreation/Activities Committee) was cre-
ated in December 1988 (G.C. Exh. 3B at 6) or January 1989
(R. Exh. 28; Tr. 1104–1106).
The Control Unit Safety Committee was created in late
1987 (G.C. Exh. 3B at 8) or early 1988 (Tr. 1588).
The Freon Central Safety Committee was created Decem-
ber 5, 1989, to replace committees that had previously ex-
isted in the Freon business unit (G.C. Exhs. 3B at 7, 11 at
13–14). It was later renamed Fluorochemicals Central Safety
Committee and again renamed Fluorochemicals Safety and
Health Excellence Committee (G.C. Exh. 11 at 101, 108).
This committee (formed during the 10(b) limitation period
discussed below) is alleged to have been unlawfully domi-
nated in its formation as well as in its administration.
The Jackson Lab Programs and Publicity Committee
began operating as a PEP-style committee sometime in the
same period as the other safety committees. About 1985,
when employees first became members, the committee met
monthly with a member of management who ‘‘oversaw the
meetings.’’ (G.C. Exh. 24; Tr. 605–608, 661–665.)
The Physical Distribution Safety Committee (also called
Environmental Resources Safety Committee) was created in
March 1989 (G.C. Exh. 3B at 9).
The Monastral Area Safety Committee, created in early
1988 and abandoned in February 1990 when the employee
members resigned upon the Union’s request (Tr. 1003–1004,
1939), is not alleged to have been an unlawfully dominated
labor organization.
d. Joint labor-management safety committee refused
The Union repeatedly informed the Company, as discussed
below, that health and safety at the Chambers Works were
its No. 1 priority.
On October 31, 1989, the Union made a health and safety
proposal (R. Exh. 22 at 1, item 2) that ‘‘The parties will cre-
ate a joint labor-management health and safety committee,’’
which would meet regularly and discuss all health and safety
issues. The Union also proposed (at 5, item 20) that the com-
mittee members would be paid for ‘‘all time spent in attend-
ing meetings, making inspections . . . and otherwise engag-
ing in legitimate duties for health and safety purposes.’’
Explaining the proposal for a joint committee at the nego-
tiations (R. Exh. 50 at 2–3), the Union told the Company:
Health and safety is a mandatory [subject of bar-
gaining]. Most industrial sites that have a union have
a joint health and safety committee. . . . This should
be the forum where all health and safety [problems] can
be aired and potential resolutions and solutions can
come out. A joint committee is critical; if in fact Man-
agement and the Union are going to work together. A
unilateral employer committee is not sufficient. . . .
The Union represents the needs of the employees . . . .
907E. I. DU PONT & CO.
Before responding to the Union’s proposal for a joint
labor-management health and safety committee, the Company
(as discussed above) announced to all employees by elec-
tronic mail that they did not believe the judge’s decision in
the prior case was ‘‘well-founded’’ and that ‘‘There will be
no change in our efforts to encourage and support your ac-
tive participation in the running of our business here at
Chambers Works.’’
In turn, the Union on January 19, 1990, notified its mem-
bers (G.C. Exh. 38) that ‘‘Until the Union and Management
can settle this issue, no one should volunteer and no one
should continue to serve on any committee or team.’’
On March 7, 1990, the Company rejected in writing the
Union’s proposals that a joint labor-management health and
safety committee be created and that committee members be
paid for this committee work (as employee members of the
Company’s safety and fitness committees were being paid).
The Company’s letter, rejecting these and other union pro-
posals, stated (C.P. Exh. 13):
The Union’s proposals on . . . health and safety
. . . are rejected by Management. These proposals in
their present format are not viewed as additive to our
business.
The Company offered only to supplement the safety com-
mittees with discussions on safety—either between Area
Safety Manager Homer Turney and the union president (Tr.
520) or between union and management representatives ‘‘to
continually improve the safety and health environment for all
employees’’ (C.P. Exh. 12 at 2)—but not to replace the safe-
ty committees as the Union was seeking.
e. OSHA guidelines for employee involvement
The Company argues in its brief (at 142–143) that the use
of its safety committees is
entirely consistent with the approach urged by the fed-
eral agency charged with overseeing employers, mainte-
nance of safe and healthful work places. In its Safety
and Health Program Management Guidelines [R. Exh.
4], the Occupational Safety and Health Administration
(OSHA) urges employers to ‘‘provide for and encour-
age employee involvement in the structure and oper-
ation’’ of the employer’s safety and health program.
. . . OSHA recognizes these functions can be carried
out in a number of ‘‘organizational contexts’’ including
committees or teams. [Emphasis added.]
I note, however, that in making this argument, the Com-
pany ignores the relevant sentence in the OSHA guidelines,
immediately following the words ‘‘in a number of organiza-
tional contexts.’’ As quoted at length nearly 120 pages ear-
lier in the Company’s brief (at 26), the OSHA guidelines
state in part:
Such functions can be carried out in a number of or-
ganizational contexts. Joint labor-management commit-
tees are most common. Other means include labor safe-
ty committees, safety circle teams, rotational assign-
ment of employees to such functions, and acceptance of
employee volunteers for the functions. [Emphasis
added.]
Yet, as discussed above, the Company rejected the
Union’s proposal for a joint labor-management committee,
stating that the proposal, as made, was ‘‘not additive to our
business.’’
f. Complaints of competing parallel structure
After lengthy negotiations with the Union, the Company
implemented the OE/PEP employee-involvement program
over union objections that ‘‘management was in the process
of setting up a parallel union on the site, bargaining directly
with people in meetings and reaching conclusions on . . .
working conditions’’ (Tr. 1623, 1908).
On December 22, 1988, after the Company began estab-
lishing the new safety committees, the Union complained in
a letter to the Company (G.C. Exh. 37) about this ‘‘obvious’’
bypassing of the Union. The Union first referred in the letter
to its earlier requests that the Company stop implementing
the ‘‘PEP Team concepts until disposition was made by the
General Counsel . . . of the charge of unfair labor prac-
tices.’’ Then, noting that the General Counsel had sustained
the Union’s appeal in the Design Team case, the Union re-
quested that ‘‘all committees be ordered disbanded‘‘—in-
cluding the ‘‘safety and health committees’’ [emphasis
added]—as a parallel structure (to the Union).
It is undisputed that the Union repeatedly complained oral-
ly to the Company about the new committees: that the Com-
pany was ‘‘taking working people and making them union
representatives’’ and that ‘‘the PEP process is nothing but a
union-busting tactic’’ (Tr. 1610–1611).
In a January 12, 1989 letter (G.C. Exh. 15A) the Union,
referring to alleged management domination of the ‘‘parallel
labor organization,’’ requested the Company to stop imple-
menting ‘‘OE, PEP, Design Teams, and any other like pro-
grams’’ until their legality was determined by the NLRB.
The Union attached a resolution, signed by 18 members of
the union executive board, stating that the ‘‘Quality of Work
Life Program . . . has as its effect the displacement and un-
dercutting of the [Union] as the duly recognized collective
bargaining representative.’’ It urged the Company to abolish
all the programs and urged all bargaining unit employees not
to participate in them.
Human Resources Unit Manager Bruce Fitzgerald admitted
that he knew by May 1989 that the Union’s position was that
the safety and health committees ‘‘ought to be disbanded’’
(Tr. 1888–1889).
It is undisputed that the Union informed the Company
early in 1989 that health and safety were the Union’s No.
1 priority (Tr. 460–462). The Company was also aware (Tr.
111) of the Union’s March 1, 1990 letter to all its members
in the Specialty Intermediates Area regarding ‘‘Resigning
Voluntary Committees’’ (R. Exh. 3). In the letter the Union
again stated that health and safety were its No. 1 priority at
the facility. It added: ‘‘The Federal Government has found
that this type of activity by committees set up on a volunteer
basis and dominated by Management and given rewards is il-
legal, they replace your Union with committees which are
given that authority by Management.’’
On July 2, 1990 (after the Company rejected the Union’s
proposal for a joint labor-management health and safety com-
mittee), the Union again complained about the safety com-
mittees. The complaint, in a letter to the Company (G.C.
Exh. 17), stated that the Company was ‘‘going behind the
908 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Union’s back to create Company-dominated ‘PEP’ teams to
address health and safety issues.’’
g. Company motivation
As an explanation for staffing the safety and fitness com-
mittees with employee volunteers—not following the ‘‘most
common’’ practice of having ‘‘Joint labor-management com-
mittees’’—the Company contends in its brief (at 139 fn. 23)
that the answer is ‘‘Quite simple.’’ It contends that such vol-
unteers ‘‘would be highly motivated and individually com-
mitted to bring their individual interests and talents to bear
on committee matters.’’
I note, however, that the Company’s own records reflect
another explanation—an antiunion motivation.
An interoffice management memorandum dated September
26, 1989 (G.C. Exh. 41 at 71), regarded ‘‘Support for Em-
ployee Recreational Events—1990’’ in the Fitness Com-
mittee budget. Management Assistant Gerald Ferguson, with
a copy to the unit manager, stated in the memorandum:
I think we should budget some funds in 1990 for the
support of employee activities, e.g. softball. . . .
If we don’t have some type of limited funding sys-
tem, the alternative is to perpetuate the current practice
where some organizations aggressively sponsor their
employee teams (J[ackson]L[ab]) and others take a hard
line. It seems that this practice just drives employees to
the Union for assistance—I would like to change that.
How’s $10000 sound? [Emphasis added.]
Thus, the Company was considering a Fitness Committee
recreation budget of $10,000 for an antiunion purpose of
competing with the Union.
2. Affirmative defenses
a. ‘‘Jefferson Chemical’’ defense
The Company contends in its brief (at 121):
Under principles set forth in Jefferson Chemical Co.,
200 NLRB 992 (1972), the General Counsel was
dutybound to investigate and to litigate all matters en-
compassed by the broad charge alleging violations of
Section 8(a)(2) and 8(a)(5) in [the earlier Design Team
case] which was tried in May 1989. His failure to do
so requires that any matters which were known, or
should have been known, by the General Counsel in
May 1989 be dismissed.
The Company points out (at 122–123) that the amended
charge in the earlier case alleged that the Company ‘‘formed,
dominated and assisted employee organizations,’’ that ‘‘by
forming, assisting and dominating this organization’’ it vio-
lated Section 8(a)(2), and that ‘‘in dealing with other enti-
ties’’ it violated Section 8(a)(5). (Emphasis added.) The
Company also points out that the complaint ‘‘focused upon
one alleged labor organization, namely the Design Team.’’
Regarding the six safety committees, however, the consoli-
dated complaint alleges only later conduct occurring since
the beginning of the 10(b) limitation periods in September
and October 1989.
These limitation periods began September 22, 1989 (6
months before the May 22 date of service of the charges
filed May 19, 1990), for Antiknocks Area Safety Committee,
Central Safety Programs Committee, Freon Central Safety
Committee, and Jackson Lab Programs Committee; October
4, 1989, for the Control Unit Safety Committee; and October
20, 1989, for the Physical Distribution Safety Committee.
Thus, the limitation periods for the six safety committees
began months after the trial in the Design Team case on May
2–4, 1989. The allegations that the Company unlawfully
dominated the formation of the Freon Central Safety Com-
mittee on December 5, 1989, and dominated the administra-
tion of all six safety committees since the beginning of the
limitation periods could not have been litigated in the earlier
proceeding.
Although five of the six safety committees were in exist-
ence before the May 1989 trial of the Design Team case, the
alleged domination of their administration would be a con-
tinuing violation. Ampex Corp., 168 NLRB 742 fn. 2 (1967),
enfd. in relevant part 442 F.2d 82 (7th Cir. 1971). The Board
held in that case that its ‘‘finding of an 8(a)(2) violation is
limited to the Respondent’s unlawful domination of, support
of, and interference with the administration of the Com-
mittee, and does not extend also to Respondent’s conduct in
regard to its formation’’ outside the limitation period. Simi-
larly in Castaways Management, 285 NLRB 954, 956
(1987), enfd. 870 F.2d 1539 (11th Cir. 1989), the Board af-
firmed violations of Section 8(a)(2) on the basis of ‘‘con-
tinuing misconduct’’ within the limitation period.
As specifically held in Alamo Cement Co., 277 NLRB
1031, 1037 (1985), enfd. mem. 810 F.2d 196 (5th Cir. 1987),
Jefferson Chemical does not preclude litigating unfair labor
practices of a continuing nature that occur in part after the
conclusion of the previous case. To hold otherwise ‘‘would
be granting [the respondent] a license to interfere’’ with pro-
tected employee rights. Of course, Jefferson Chemical could
not preclude litigating the allegation that the Company domi-
nated the formation of the Freon Central Safety Committee
in December 1989, 7 months after the close of the May 1989
Design Team trial. Great Western Produce, 299 NLRB 1004
fn. 1 (1990) (unlawful unilateral conduct ‘‘long after’’ the
earlier trial).
The General Counsel and the Union contend that the Jef-
ferson Chemical principle against piecemeal litigation is not
applicable in the circumstances of this case. But even assum-
ing that Jefferson Chemical would be applicable, I find that
the principle does not apply to the allegations of 8(a)(2) and
(5) conduct toward the six safety committees within the limi-
tation periods, months after the Design Team trial in May
1989.
Regarding the Fitness Committee, the General Counsel has
alleged that the Company continued to dominate its adminis-
tration after the close of the May 1989 trial. I find that the
Jefferson Chemical principle does not preclude litigation of
this conduct. The 10(b) defense relating to the conduct is dis-
cussed below.
I deem it unnecessary to rule on the allegation that the
Company unlawfully dominated the formation of the Fitness
Committee in 1988 (before the trial in May 1989). I do rule
on the merits of alleged domination of the formation of the
Freon Central Safety Committee in December 1989 (long
after the close of that trial). A ruling involving the formation
of the Fitness Committee would not affect a remedial order.
909E. I. DU PONT & CO.
b. The 10(b) defense
The Company contends in it brief (at 128–129) that the
8(a)(2) allegations relating to the six safety committees and
the Fitness Committee should be dismissed because the un-
derlying charges filed in March and April 1990 were un-
timely under Section 10(b) of the Act.
Regarding the safety committees, as discussed above, the
General Counsel has alleged only conduct occurring since
the beginning of the 10(b) 6-month limitation periods in Sep-
tember and October 1989. I therefore reject the contention
that the underlying charges were untimely.
Regarding the allegations that the Company unlawfully
dominated the administration of the Fitness Committee after
the close of the May 2–4, 1989 Design Team trial, I agree
with the General Counsel that the underlying charge was
timely filed.
As held in A & L Underground, 302 NLRB 467, 468
(1991):
[T]he Board’s long-settled rule [is] that the 10(b) period
commences only when a party has clear and unequivo-
cal notice of a violation of the Act. . . . Further, as is
the case with the 10(b) defense generally, the burden of
showing that the charging party was on clear and un-
equivocal notice of the violation rests on the respond-
ent.
If the Union had been on notice of the alleged violation,
the limitation period for the Fitness Committee would have
begun September 22, 1989 (6 months before the March 19
charge was served March 22, 1990). The Company’s inter-
office management memoranda dated September 18 and 27,
1989 (5 days after September 22), indicate, however, no
company awareness at that time of the Union’s being ‘‘in-
formed in any manner concerning the Fitness Committee’s
functions and or activities’’ (G.C. Exhs. 30, 31; Tr. 1079–
1082).
The Union’s first knowledge of even the existence of the
Fitness Committee came shortly after the committee sent out
its September 5, 1989 electronic mail message (G.C. Exh.
34B; Tr. 1133), asking for volunteers to ‘‘Bring Your Own
Rakes and Shovels’’ for ‘‘our latest undertaking,’’ making
flower beds at the C Corral, a former parking lot (Tr. 482,
1084). The Union had been informed in April 1989 that the
Company ‘‘intended to build a track facility and to provide
some additional items for recreation in C Corral’’ (G.C. Exh.
36, par. 11(e); R. Exh. 29; Tr. 1009–1020, 1153), but noth-
ing about the Fitness Committee.
The Union sent the Company a letter dated September 12,
1989 (G.C. Exh. 34A), stating that it ‘‘has no knowledge of
what this committee is’’ and ‘‘requesting immediate informa-
tion’’ about it. There is no evidence that the Company pro-
vided the information until the following March (G.C. Exhs.
3A and 3B at 6).
I find that the Company has failed to meet its burden to
show that the Union was on clear and unequivocal notice of
the alleged violation before the Company’s response in
March 1990, the same month the Union filed the charge. I
therefore reject the Company’s contention that the underlying
charge was untimely.
c. Waiver defense
Without citing any applicable authority that waiver is a de-
fense to an 8(a)(2) violation, the Company contends in its
brief (at 130–133) that the Union has waived the alleged
8(a)(2) violations. I reject this contention as unfounded.
The Company contends (at 130–131) that the Union
waived any objections to the safety committees by failing to
specifically request their abolition in the company-union ne-
gotiations on October 31, 1989 (when the Union proposed a
joint labor-management health and safety committee). It fur-
ther contends (at 132) that the Union’s ‘‘Broadly worded let-
ters objecting to PEP-style committees as ‘illegal’ during the
pendency’’ of the earlier Design Team case and after Judge
Pacht’s ‘‘resolution of that charge,’’ should not be regarded
as ‘‘specific objections to the safety-related committees.’’ In
making these contentions the Company overlooks the
Union’s written December 22, 1988 request, discussed above,
that the Company disband the ‘‘safety and health commit-
tees.’’
The Company also contends (at 131–132) that ‘‘it is clear
the [Union] has acceded to, and been involved in, the very
system it now objects to in the Antiknocks (Petchem) Area
and other units/areas with safety-related committees.’’ It con-
tends that Leslie Morris (the Union’s president in 1987, Tr.
1615) ‘‘expressly agreed’’ to the formation of the Antiknocks
Area Safety Committee, which would include bargaining unit
personnel. In explanation, the Company asserts that Morris
had no objection if the committee (quoting from Morris’ tes-
timony) ‘‘merely [sought] input from the bargaining unit
people related to how to better perform in the safety area.’’
Again, as in its above argument about OSHA guidelines
(ignoring the relevant sentence, ‘‘Joint labor-management
committees are most common’’), the Company omits and ig-
nores a relevant portion of Morris’ testimony. Over 70 pages
earlier in its brief (at 58) the Company did include the rel-
evant portion, as follows (Tr. 1617):
We told them that as long as they did not infringe
on any of the bargaining rights of the collective bar-
gaining agreement, that if they were merely seeking
input from the bargaining unit people relative to how
to better perform in the safety arena, we had no objec-
tions. [Emphasis added.]
The Company also contends (at 131) that union stewards
‘‘actively participated as members’’ of the Antiknocks Area
Safety Committee ‘‘from 1987 forward.’’ It is true that four
union stewards (Donald Hymer, Philip Muldoon, David
Muntz, and Wayne Serfass) volunteered to be members in
1987 when the Company established the committee (Tr. 165,
171–172, 696). The Company admits, however, that stewards
served on the committee only as individual employees and
did not speak for the Union (Tr. 191–192).
Three of these stewards had left the committee by early
1990 (Tr. 170–171, 328–330). On March 26, 1990, the fourth
one (Muntz) was terminated as a union steward ‘‘Because I
wouldn’t get off the safety committee’’ (Tr. 700, 730; R.
Exh. 40 at 18). Another committee member (Grady
Fryberger) was appointed steward on January 30, 1989. He
was not, however, recognized as a steward after May 15,
1989. His name was inadvertently retained on the stewards,
910 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
list until he was removed formally on September 19, 1990
(Tr. 155, 328, 387–388; R. Exh. 40 at 1, 21).
The authorized 110 stewards for the production and main-
tenance unit and 20 for the clerical unit (both bargaining
units represented by the Union) have only limited contractual
authority and are not authorized to represent the Union on
any of the safety committees. The stewards are contractually
authorized to present employee complaints and demands to
foremen. They are appointed by the elected area representa-
tives to assist the representatives, whose functions are to
‘‘police the contract’’ and act on the Union’s behalf in griev-
ance meetings and negotiations with the Company. (Tr. 280–
281, 477–478, 501, 518–519; R. Exhs. 13 at 14–16, 14 at
15–17; C.P. Exh. 8 at 10.)
The Company further contends (at 132) that two area rep-
resentatives (James Shields and Fred Clements) ‘‘knew of
both the composition and the activities of the Control Unit
Safety Committee since early 1988,’’ yet the Union ‘‘per-
mitted it to function without objection.’’ In making this addi-
tional waiver contention the Company again overlooks the
Union’s December 22, 1988 request that the Company dis-
band all the safety committees.
3. Company-dominated labor organizations
a. Overview
All six safety committees and the fitness committee share
the following attributes.
1. The Company—not the employees—initiated the com-
mittees. Employees in both the production and maintenance
and the clerical bargaining units were already represented by
the Union, which was seeking a joint labor-management
safety committee.
2. The Company decides which employees to invite, from
what working groups or areas and, if the number of volun-
teers exceeds the desired number, it selects the volunteers to
serve on the committees (Tr. 126–128, 796, 1675–1676).
3. Members of management serve on all seven committees
(G.C. Exh. 36).
4. These PEP-style committees operate at the will of the
Company, who may modify or abolish them at any time.
5. The Company permits the electronic mail to be used to
distribute committee literature and notices, but prohibits em-
ployees from using it to distribute any union literature or no-
tices.
6. Employees serve on the committees for indefinite peri-
ods of time, without any regular rotation (Tr. 607; G.C. Exh.
7 at 135).
7. Employee members receive their regular pay for the
time spent in attending meetings and performing committee
duties (G.C. Exh. 36; Tr. 693).
8. The Company provides meeting places, equipment, and
supplies and pays all expenses of the committees (G.C. Exh.
36).
Section 8(a)(2) of the Act provides:
It shall be an unfair labor practice for an employer—
. . . .
(2) to dominate or interfere with the formation or ad-
ministration of any labor organization or contribute fi-
nancial or other support to it: Provided, That subject to
rules and regulations made and published by the Board
pursuant to section 6, an employer shall not be prohib-
ited from permitting employees to confer with him dur-
ing working hours without loss of time or pay . . . .
[Emphasis added.]
A ‘‘labor organization’’ is defined in Section 2(5) as fol-
lows:
(5) The term ‘‘labor organization’’ means any orga-
nization of any kind, or any agency or employee rep-
resentation committee or plan, in which employees par-
ticipate and which exists for the purpose, in whole or
in part, of dealing with employers concerning griev-
ances, labor disputes, wages, rates of pay, hours of em-
ployment, or conditions of work. [Emphasis added.]
In denying that the safety and fitness committees are statu-
tory ‘‘labor organizations,’’ the Company contends in its
brief (at 134) that ‘‘They function only as a management ve-
hicle to enhance the safety of employees through labor-man-
agement communications or to carry out similar management
functions.’’ Thus, in effect, the Company is admitting that
the committees, purportedly functioning only as ‘‘a manage-
ment vehicle,’’ are under its control.
In view of this position and the persuasive evidence of ac-
tual company domination of the formation of one committee
and the administration of all seven committees, I find that if
the employer-employee committees are labor organizations,
they are company-dominated labor organizations. NLRB v.
Scott & Fetzer Co., 691 F.2d 288, 291 (6th Cir. 1982). In
that case the court stated:
We think there is little question that if [the em-
ployer-employee committee] is a ‘‘labor organization’’
under section 2(5) of the Act, the Committee was domi-
nated by the Company. It was expressly mandated by
the Company, and the Company controlled the com-
position and its meetings. Therefore, we think it follows
that if the Committee was in fact a labor organization,
the Company was guilty of a violation of section
8(a)(2).
I first consider the evidence of domination and then the
evidence concerning the status of the committees as labor or-
ganizations.
b. Domination
(1) Formation of Freon Central Safety Committee
The evidence shows that the Company created the Freon
Central Safety Committee, exercising control over its struc-
ture and purpose.
On November 29, 1989, David Moffett, a Freon area man-
ager, sent a memorandum to 9 bargaining unit employees
and to 12 members of management, ‘‘exempt’’ personnel,
whether titled consultant, coordinator, director, management
assistant, manager, or supervisor (G.C. Exhs. 1qq, 3B at 7,
36 at 8; Tr. 83, 1696). In the absence of any objection, I re-
ceive in evidence (as R. Exh. 51) the Company’s September
26, 1991 posttrial cover letter and the attached partial list of
its supervisors and agents.
In the memorandum (G.C. Exh. 11 at 3) Moffett invited
the individuals to a December 5, 1989 meeting ‘‘designed to
911E. I. DU PONT & CO.
define the Freon Area’s safety process for 1990’’ and stated:
‘‘You were selected to participate based on your dem-
onstrated interest in the continuous improvement of the
Freon Area safety performance. . . . Please contact [one of
two individuals] if you cannot attend this meeting.’’ Moffett
admitted (Tr. 1662–1663) selecting the 21 employees and
members of management.
Before the December 5 meeting, as discussed below,
Moffett and others met and made plans for structuring a safe-
ty committee for the Freon business unit (Tr. 1700–1701;
G.C. Exh. 11 at 23).
On December 5, 1989, when all 9 employee ‘‘volunteers’’
and 9 of the 12 management members attended an all-day
meeting at a nearby hotel, the Company ‘‘established’’ a new
committee (G.C. Exhs. 3B at 7, 11 at 4). On December 11
Area Manager Mark Kaufman, who chaired the meeting,
named the committee the ‘‘Freon Central Safety Committee’’
and sent minutes of the meeting to the 21 employees and
members of management he had invited to participate (G.C.
Exhs. 11 at 13, 36 at 8; Tr. 786, 1696).
Then on December 21, 1989, Kaufman distributed a letter
to all Freon personnel, informing them of the decision ‘‘to
eliminate the old safety steering committee and its sub-com-
mittees’’ and to replace the committees with the new com-
mittee. He listed the committee’s ‘‘key functions,’’ one of
which was to ‘‘Become a forum for discussion and resolution
of safety concerns.’’ (G.C. Exh. 11 at 33; Tr. 1695.)
Thus the Company, through its management, controlled all
aspects of the formation of the new committee. It called the
organizational meeting, selected employees and members of
management to attend, made plans ahead of time for struc-
turing the committee, chaired the meeting, and, with the em-
ployees participating, determined the structure and purpose
and created the new committee.
I find that the Company dominated the formation of the
Freon Central Safety Committee.
(2) Administration of committees
The evidence is clear from the structure and operation of
the seven PEP-style safety and fitness committees, that the
Company exercises control over the operations of the com-
mittees. Under the PEP-style structure, management members
of the committees control the subject matter of the meetings
and must approve all committee decisions.
As defined in the PEP Glossary, each committee has a
leader (chairman), a resource (monitor), and a scribe (note
taker). Before each meeting, the leader, resource, and scribe
confer and determine the agenda. At the meeting, they
‘‘work together as a team.’’ All decisions must be made by
‘‘consensus,’’ defined as being ‘‘reached when all members
of the group, including its leader, are willing to accept a de-
cision.’’ After the meeting, the leader, resource, and scribe
confer again and evaluate ‘‘how the meeting went and how
to make it better next time.’’ (C.P. Exh. 1 at 5, 39–41, 68,
70; Tr. 217–219, 623, 807, 1282.)
A management member serves either as the leader or as
the resource, a ‘‘facilitator, advisor’’ who ‘‘keeps the meet-
ing on track’’ (Tr. 59–60, 318, 608, 698–699, 784, 799; G.C.
Exhs. 5 at 85, 158, & 202, 11 at 11, and 24 at 21; C.P. Exh.
1 at 39; R. Exhs. 31 at 2 & 5, 51). In either position the
management member exercises control over planning the
agenda and over conducting the meeting, either by chairing
the meeting or keeping it ‘‘on track.’’ By requiring a con-
sensus for all decisions, the Company ensures management
control over committee activities. No decision can be reached
by the committee unless all management members present at
the meeting ‘‘accept’’ the decision.
The employees have no independent voice in determining
the existence, structure, or purpose of the committees. The
Company can change or abolish any of the committees at
will, as it did in reorganizing the Central Safety Programs
Committee in 1988 and 1989 and in eliminating the old safe-
ty committees in the Freon business unit and creating a new
committee on December 5, 1989, as discussed above. The
committees are wholly dependent on the Company for meet-
ing places, equipment, supplies, and expenses. The employee
members receive their regular pay for time spent in com-
mittee activities. (G.C. Exh. 36.)
The Company argues in its brief (at 157–158) that its con-
duct did not ‘‘adversely affect employee freedom of choice
and expression,’’ citing Hertzka & Knowles v. NLRB, 503
F.2d 625, 626, 629–631 (9th Cir. 1974). That case is distin-
guishable. There, each of the five in-house committees was
composed of five employees and one management represent-
ative. In sharp contrast to here, an employee suggested the
committee system, which was approved ‘‘overwhelmingly’’
by the employees themselves. Moreover, the employee com-
mittee members could ‘‘easily outvote’’ the management rep-
resentative.
Citing its holding in an earlier case, the court ruled (503
F.2d at 630) that the ‘‘question is whether the organization
exists as the result of a choice freely made by the employees,
in their own interests, and without regard to the desires of
their employer.’’ The court further ruled that an 8(a)(2) find-
ing ‘‘must rest on a showing that the employees’ free choice,
either in type of organization or in the assertion of demands,
is stifled by the degree of employer involvement’’ (emphasis
added).
Here, it was the Company that initiated the committees.
The employees were already represented by the Union, and
the Company rejected the Union’s offer to ‘‘work together’’
with the Company on safety matters through the proposed
joint labor-management safety committee. The employees
had no ‘‘free choice’’ in the ‘‘type of organization.’’
The Company argues (at 160–161): ‘‘There is nothing on
this record to suggest that, once on the committee, these em-
ployees [serving on a voluntary basis] were in any way
thwarted in the free expression of their views at committee
meetings.’’ It is clear, however, that the employee members
had no ‘‘free choice’’ in the ‘‘assertion of demands’’ beyond
the committees to the Company. The PEP requirement that
all decisions be made by consensus gave the management
members an absolute veto.
I find that the Company dominates the administration of
the seven committees.
c. Labor organizations
(1) Employee representation committees
In denying that the safety and fitness committees are labor
organizations, the Company contends in its brief (at 134) that
they ‘‘do not function as representational bodies.’’ It argues
that they are not understood by either the employees or the
Company ‘‘as acting on behalf of non-participating bargain-
912 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing unit employees’’ and that they function ‘‘only as a man-
agement vehicle.’’
The evidence, however, reveals (a) that both employees
and members of management regard employee committee
members as representatives of their working groups or areas
and (b) that the employee members participate in committee
activities on behalf of other bargaining unit employees.
(a) Freon central safety committee
Employee representation of each working group was part
of the planning for this committee. Before the December 5,
1989 organizational meeting, Area Manager Moffett and oth-
ers met and planned ‘‘Area-wide representation [emphasis
added] per the following [12] groups’’ in the Freon business
unit. The groups included (1) 12-hour shift operators, (2)
blending and shipping operators, (3) mechanic/insulators, (4)
instrument mechanics, (5) electricians, (6) technicians, listed
as ‘‘Technical Representative [emphasis added],’’ (7) labora-
tory personnel, and (8) clerical/planner schedulers. The other
groups consisted of members of management in the Freon
business unit: (9) shift team managers, (10) team managers,
(11) area managers, and (12) safety and environmental con-
sultants. (Tr. 1700, 1709; G.C. Exh. 11 at 23.)
Thus in late 1989, when all six of the other PEP-style
safety and fitness committees were already in operation, Area
Manager Moffett was planning an employee representation
structure for the safety committee in the Freon business unit.
As discussed below, those in attendance wanted the com-
mittee to be cross-sectional, with a representative from each
group, ‘‘So everybody would be represented.’’
By the time, however, that Area Manager Kaufman named
the new committee on December 11, 1989, and announced
it to the Freon employees on December 21 and when Area
Manager Moffett testified at the trial, the Company was
avoiding using the word ‘‘representation.’’
In Kaufman’s December 21 announcement (G.C. Exh. 11
at 33–34), as well as his December 11 draft of the letter
(G.C. Exh. 11 at 14–15), he omitted the phrase, ‘‘Area-wide
representation per the following groups.’’ He stated in the
announcement: ‘‘The area has been divided into 12 groups
with the hope of having at least one volunteer from each
with a maximum of 20 people on the Central Safety Com-
mittee. . . . The groups are as follows’’ (listing the same 12
groups). He continued to list a ‘‘Technical Representative’’
for the technicians.
When Area Manager Moffett was questioned at the trial
about the words ‘‘area-wide representation for the following
groups’’ and asked if ‘‘what the committee was seeking was
representatives from those groups,’’ he evasively responded
(Tr. 1700–1701):
A. What they were seeking was a background of
. . . varying experiences. People who were working in
different areas . . . a cross section . . . .
. . . .
A. I’m saying that that’s the sense of what this divi-
sion is.
. . . .
I worked with four or five people in structuring the
questions that we were going to ask and how we were
going to do it.
And, what we were looking at all along in our peo-
ple that we invited, were people that came from varying
background, varying of skills. [Emphasis added.]
Moffett did not explain—if this were a complete, candid
response—why he used the words ‘‘Area-wide representation
per the following groups’’ when planning ‘‘how we were
going to [structure the committee],’’ and the Company offers
no explanation for the listing of a ‘‘Technical Representa-
tive’’ for the technicians. Moffett did not concede that the
employee volunteers would in fact be ‘‘representing’’ the
first eight listed groups of Freon employees. Finding Moffett
to have been less than candid, I discredit his response to that
extent.
As the undisputed testimony of employee member Ronald
Nipe disclosed, Unit Manager Marvin Reinhart (manager
over the Freon areas) also referred to employee representa-
tion. Nipe credibly testified (Tr. 782) that Reinhart (who at-
tended the meeting but who who did not testify) personally
told him before the December 5, 1989 meeting that Reinhart
wanted him as a ‘‘representative’’ on the committee. Nipe
testified that the committee wanted to be cross-sectional (Tr.
786). When asked what that meant, he credibly answered
(Tr. 806–807):
Well, that means you have . . . a representative
from the mechanical group, electrical group, the instru-
ment group, the operating group.
Q. And . . . did anyone say why they wanted a
cross-sectional representation?
A. So everybody would be represented.
Nipe acknowledged on cross-examination that it was true
that he was encouraged to bring his own ideas to the meet-
ings and was not encouraged to canvass and poll people and
bring their ideas. He testified, however: ‘‘I felt obligated that
if there was a problem in the area that I would convey it.’’
(Tr. 819.) He further testified that area employees submit to
the committee written F.U.S.S. (Follow Up Safety Sugges-
tions) safety complaints, which the committee discusses and
works on to correct (Tr. 792–793, 850, 853; G.C. Exh. 11
at 26).
The evidence is clear that the employee members partici-
pate in the committee activities on behalf of other bargaining
unit employees. As discussed below, employee members reg-
ularly discuss with management members and seek to resolve
employees’ safety complaints, agreed that bargaining unit
employees should be assigned to audit teams to improve
safety audits, sought exceptions in the safety manual for cer-
tain Freon employees, and seek appropriate awards for the
employees’ safety accomplishments.
(b) Antiknocks area safety committee
Employee member David Muntz, whom the Union termi-
nated as a steward because he refused to leave the com-
mittee, credibly testified about contacting nonmember em-
ployees. ‘‘We talked to fellow employees and if they had a
safety item that they thought needed correcting, they would
bring it to the committee . . . it was the fastest way to get
things fixed.’’ (Tr. 701, 707.)
An example was the complaint of a welder who was
‘‘concerned about his health’’ because of poor ventilation in
913E. I. DU PONT & CO.
the welding shop. After the Union’s efforts failed in getting
the problem solved, the welder took the problem to employee
committee members. The committee succeeding in getting
him a new welding shop. (Tr. 297–303, 702–705, 717, 728–
729; G.C. Exh. 7 at 47.)
The employee members’ representative role is further indi-
cated by one of the committee’s listed ‘‘Accomplishments’’
(G.C. Exhs. 7 at 1, 47): in 1988, ‘‘Area People Recognize
Committee,’’ and in 1989, ‘‘Recognition of Committee.’’
The evidence, discussed below, further shows that em-
ployee members represent nonmember employees in dis-
cussing and seeking solutions to their safety complaints and
in seeking larger and more appropriate safety awards.
(c) Central safety programs committee
This committee is responsible for the monthly safety pro-
grams in the plant (Tr. 62). Evidently for better representa-
tion, employee membership on the committee is ‘‘prorated’’
according to number of employees in the various business
units of the plant (Tr. 126–127).
When Unit Manager Joseph Jenny, the committee’s re-
source, was asked ‘‘Who decides the topics that will be ad-
dressed in those safety meetings,’’ he answered (Tr. 125):
‘‘That committee generally solicits a list of topics.’’
Employee members act for other bargaining unit employ-
ees in seeking more appropriate safety prizes throughout the
plant, as discussed below.
(d) Control unit safety committee
Clerical employee Ralph Coggovia credibly testified that
he joined the committee when management member Nickolas
Psaltis personally called him and asked if he wanted to vol-
unteer to be on the committee for the clerical people (Tr.
1261). After he joined, employees approached him about
safety problems (Tr. 1216, 1244–1245, 1254–1259).
As a committee member he recognizes his representative
responsibility, but only for safety problems in his office.
During remodeling in the Specialty Intermediates building, a
clerical employee who worked in another part of the building
complained to him about a fire extinguisher being on the
floor instead of hanging on the wall. He asked, ‘‘Why are
you asking me?’’ and suggested that the employee go to the
proper person, the landlord of the building. The response
was: ‘‘You’re a member of the control department safety
committee, you handle it.’’ He did so, on behalf of the com-
mittee. (Tr. 1217, 1245.) Coggovia explained: ‘‘I wouldn’t
want 500 different people coming directly to me’’ with safe-
ty complaints. He added, however, that he ‘‘would be in-
volved’’ if the employee ‘‘had a problem in his office.’’ (Tr.
1244, 1258.)
Employees also contact other employee committee mem-
bers with complaints, and the committee discusses the safety
items in its meetings. The committee used the electronic mail
to invite employees having ‘‘any safety situation to feel free
to contact any member of the committee’’ (Tr. 1312, 1335).
Employee members also act on behalf of other Control
Unit employees in seeking more appropriate safety awards,
as discussed below.
(e) Fitness committee
It is undisputed that management member Everett Sparks,
who initiated the Fitness Committee, informed employee
member Arthur Ebert that they were seeking a ‘‘representa-
tive’’ from each area—even though (Tr. 1112–1113, 1127)
many of the employee members on the committee had a spe-
cial interest in fitness. Sparks (who did not testify) told Ebert
that the original membership was developed ‘‘through a
cross-sectional view . . . . You try and incorporate . . . a
representative from each area, say a mechanic or whatever,
to be on the membership.’’ (Tr. 1414, 1423–1424.)
Ebert further credibly testified that he ‘‘specifically asked
[Sparks] why certain people were on this committee and
[Sparks] said that it would be more representative if it was
a cross-sectional view of the site. And it was regardless of
what their feelings were personally . . . as far as fitness is
concerned.’’ (Tr. 1425.)
The evidence, discussed below, shows that employee
members have made continuing efforts on behalf of the em-
ployees plantwide to obtain additional fitness facilities. At
least one employee outside the committee took a suggestion
for an additional fitness facility to the committee through a
committee member (Tr. 1390, 1438).
(f) Jackson lab programs committee
Employee Joseph Karaskevicus credibly testified that he
went on the committee when Lab Supervisor Perry Poless
(who did not testify) asked if he would like to join the com-
mittee, because Poless ‘‘needed a representative from his
group.’’ There were about 17 working groups in the Jackson
Lab and ‘‘There’s supposed to have been a representative
from each work group on the committee.’’ (Tr. 605–607.)
Karaskevicus explained that ‘‘The philosophy is to have each
work group send a representative to the committee’’ (Tr.
652).
Employee committee member Kim Nelson acted on behalf
of nonmember employees when she solicited ideas by elec-
tronic mail from all 1100 Jackson Lab employees on what
they would like for a 25-year safety celebration (Tr. 627–
628, 682, 692–693; G.C. Exh. 3B at 4). The committee fur-
ther demonstrated that it was acting on the employees’ behalf
in December 1989 when it sent the committee’s 1990 safety
programs questionnaire to the 1100 Jackson Lab employees
(G.C. Exh. 24 at 30–33; Tr. 655–657).
Employee members have dealt with management members
in deciding to continue and later to discontinue one of the
safety programs, in discussing and deciding on appropriate
safety awards, and in determining whether to adopt a pro-
gram to give company stock as a safety award, as discussed
below.
(g) Physical distribution safety committee
Employee William Scurry credibly testified that when em-
ployees in the truck control center were asked if anybody
wanted to join the committee, ‘‘I was the only one on day
work at the time, so I joined it as our representative’’ (Tr.
1273). He told employees in his area that ‘‘if they had a
safety problem’’ and ‘‘if they brought it to me, I would take
it to the committee and the committee would look at it.’’ His
supervisor was aware that he had permission ‘‘to take things
to the safety committee.’’ (Tr. 1301–1302.) Other employee
914 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
members also ‘‘brought problems from the employees to the
committee’’ (Tr. 1305).
The evidence thus shows that although employee members
of the seven committees are not elected by the employees,
they serve in an agency relationship, representing the bar-
gaining unit employees. In view of this finding I deem it is
unnecessary to rule on the Union’s contention in its brief (at
95–100) that because of the statutory language (‘‘any organi-
zation of any kind . . . in which employees participate’’),
‘‘even if the committees here were not considered representa-
tional, they would still be labor organizations within the
meaning and intent of the Act.’’
I reject the Company’s contention that the committees
function ‘‘only as a management vehicle.’’ I find that each
of the seven safety and fitness committees is a ‘‘employee
representation committee’’ and that although the employee
committee members are not elected, an agency relationship
exists between them and the bargaining unit employees they
represent.
(2) Dealing with employer
(a) In general
The statutory definition of a labor organization (quoted in
full above) requires that the organization exists at least in
part for the purpose of ‘‘dealing with’’ employers concerning
‘‘conditions of work.’’
There is no dispute that the purpose of each of the safety
and fitness committees concerns working conditions and that
both safety and fitness facilities, as well as benefits, are man-
datory subjects of bargaining. ‘‘Employee health and safety
indisputably are mandatory subjects of bargaining.’’ Oil
Workers Local 6–418 (Minnesota Mining) v. NLRB, 711 F.2d
348, 360 (D.C. Cir. 1983).
Contrary to the Company’s contention in its brief (at 134–
155) that none of the seven committees ‘‘deal with’’ it with-
in the meaning of Section 2(5) of the Act, I agree with the
General Counsel (in his brief at 91–92) and the Union (in
its brief at 91–93) that bargaining unit employees on the
committees deal with the Company at different levels.
First, at the committee level, the employee members act on
behalf of other bargaining unit employees in dealing with the
management members, who represent the Company. Second,
when approval of higher management is required for pro-
posals on which both employee and management members
agree at the committee level, or when action is required by
other management, the committee through one or more of its
members deals with the Company at the other level.
The dealing consists of various forms. One is when bar-
gaining unit employees take their safety complaints or re-
quests for fitness facilities to the committee or its employee
members—rather than through stewards to the Union—as a
faster or more effective way of getting results. The employee
and management members discuss the matters in the meet-
ings and try to resolve them. One of the stated ‘‘key func-
tions’’ of the Freon Central Safety Committee, for example,
is to ‘‘Become a forum for discussion and resolution [empha-
sis added] of safety concerns’’ (G.C. Exh. 11 at 33).
Another form of this dealing is the employee members act-
ing on behalf of bargaining unit employees in seeking larger
or more appropriate safety awards. Previously, as found,
when employees complained to the Union that management’s
safety prizes were becoming insignificant in value or were
being reduced in value (before the Company created the
PEP-style safety committees), the Union would bargain with
the Company in executive meetings for ‘‘a greater prize for
[the employees’] accomplishments.’’
Another form is the employee members’ acting on behalf
of bargaining unit employees—instead of the Union’s acting
on their behalf—in seeking to improve the effectiveness of
safety audits by assigning employees to serve with members
of management in conducting nonpunitive safety audits. Still
another form is discussing and proposing changes in the
Safety How manual, which directly affects the employees’
working conditions.
The complaint alleges that the Company unlawfully by-
passed the Union in dealings with the committees: since the
beginning of the limitation periods for the safety committees
and since the May 2–4, 1989 Design Team trial for the Fit-
ness Committee.
(b) By the seven committees
(i) Antiknocks area safety committee
This committee clearly substitutes for the Union in han-
dling safety complaints for employees in the business unit
since the September 22, 1989 beginning of the limitation pe-
riod.
Employees take their safety concerns to employee com-
mittee members by ‘‘word of mouth’’ or to the committee
by dialing its ‘‘lead line’’ (dialing L E A D). They talk to
an employee member during the day or leave a message on
the answering machine at night. Employee member James
Graves and other committee members take turns listening to
the answering machine and ‘‘would get the problem and
write it down on a book and then it would be addressed at
one of our meetings.’’ (Tr. 701–702, 742–743, 753–754.)
Committee minutes for the February 13, 1990 meeting
show an example. The minutes state that an employee mem-
ber reported that ‘‘A need has been expressed for a central
facility to put on and clean up, and remove acid suits. Object
is to localize contamination.’’ (G.C. Exh. 7 at 74; Tr. 153–
154).
As another example, one of the committee’s ‘‘1990 Ac-
complishment’’ reads (G.C. Exh. 7 at 125): ‘‘Welder’s cloth-
ing being punched at change house.’’ The evidence shows
that someone had noticed that the flameproof suits were not
being punched (to be replaced after being punched and
washed 25 times) and ‘‘brought it to the attention of the
safety committee.’’ The committee contacted the change
house attendant and arranged for the clothes to be properly
punched and replaced. (Tr. 748–749; G.C. Exh. 7 at 74.)
Other listed 1990 accomplishments included such safety
matters as pot holes fixed, new covers put on ditches, person
assigned to clean air hoses, sidewalk along seawall repaired,
and exhaust pipe at shop repaired (G.C. Exh. 7 at 125).
Committee members meet, discuss the problems, and try
to resolve them. Often a designated committee member
‘‘would find out who was in charge of that area and would
present the problem’’ on the committee’s behalf. If the prob-
lem can not be resolved or takes too long, the committee
goes to the business unit manager. Then if the problem is not
resolved, the committee may threaten to go to the plant man-
915E. I. DU PONT & CO.
ager. Something like 90 percent of the problems ‘‘got
fixed.’’ (Tr. 701, 743–744, 1033–1034.)
The Union learned in March 1990 that its steward Muntz
was involved in this activity and immediately notified the
Company in writing to ‘‘Please remove’’ him from the stew-
ards list (R. Exh. 40 at 18). Area Representative John Bowe
credibly testified that when Muntz described his involvement
with this committee at a safety conference, ‘‘I went back to
the hall and I asked to have him stricken from the list’’ (Tr.
1033, 1063). Bowe explained (Tr. 1071) that Muntz had de-
scribed
basically how they had a grievance procedure built
right in . . . to where they would go up the steps [as
in a grievance procedure]. They would handle things in
the area, then they would go to the business unit man-
ager, and then they would threaten to go to the plant
manager.
Sometimes the management members do not agree when
the employee members deal with them in committee meet-
ings. An example is the ‘‘Update—Hot suit cleaning room’’
in the January 16, 1990 minutes (G.C. Exh. 7 at 66). The
employees wanted new silver fireproof suits for use around
molten lead (used in producing the gasoline ‘‘antiknocks’’
additive), ‘‘but management didn’t want to give them to us
until we had a cleaning facility for them’’ (Tr. 714–715). Six
weeks later management member John Redkoles told the em-
ployee members that the new hot suits would be ordered that
week (G.C. Exh. 7 at 77).
I infer that Redkoles, a safety consultant in the Antiknocks
business unit, serves as the committee’s resource. The docu-
mentary evidence shows that he formed the committee in
1987, initially handled the ‘‘lead line’’ calls, prepared (with
Area Manager Michael Gilmore) ‘‘a proposal for addressing
all opportunities’’ presented by the September 1989 Safety
Emphasis survey, and distributed charts (each bearing his
name) from the committee’s 1990 planning meeting on No-
vember 10, 1989 (G.C. Exh. 7 at 6, 19, 44–54).
Employee members also deal with management members
in seeking larger or more appropriate safety awards. If higher
approval is required, the committee deals with the Company
at the higher level.
The committee has agreed to give some expensive safety
awards. Awards given since the beginning of the limitation
period included an ‘‘Antiknocks Perfect Attendance’’ dinner
dance for 35 people in March 1990 costing $2223.25 and a
dinner dance for 50 people in April 1991 costing $3404.66
(G.C. Exhs. 7 at 161–162 & 187–194, 36 at 4). The com-
mittee awarded 24 jackets costing $1476 (G.C. Exh. 7 at
195, 197–199). A note on a November 20, 1990 invoice for
20 of the jackets reads (G.C. Exh. 7 at 197): ‘‘14 to Bar-
gaining Unit.’’
Committee minutes show that the 1990 dinner dance was
discussed in meetings on January 27, February 13, and
March 13, 1990 (G.C. Exh. 7 at 72, 74, 81). They also show
that the 1991 dinner dance was discussed January 15 (with
notations, ‘‘No time lose (DW days)—No illness’’ and ‘‘No
Recordable injuries’’), January 22, February 12 (with a nota-
tion, ‘‘Recordable injuries not eligible’’), February 19, March
1, 5, and 12, and April 2, 1991 (G.C. Exh. 7 at 139, 140,
143–146, 148, 153).
There was a dispute in the committee over eligibility for
the ‘‘perfect attendance’’ award. The criteria were no lost
workdays from disability, no recordable injuries on or off the
job, and no recordable occupational illnesses, which includes
no KOA (presumably Knock Out of Area), that is, being
‘‘removed from the area for a high lead’’ content in the
blood or urine. (Tr. 151, 157). Those were the criteria for the
dinner-dance award both in the spring of 1989 (outside the
limitation period) and in March 1990 (Tr. 158).
In 1991, employee members sought an expansion of the
awards to other employees by eliminating the no-KOA re-
quirement for eligibility, but the management members did
not agree and the requirement remained (Tr. 151, 738–740).
The committee agreed to the award of jackets in 1990, but
approval of the business unit manager was required (Tr.
714). There have been various other awards approved by the
committee since the beginning of the limitation period.
(ii) Central safety programs committee
Since the September 22, 1989 beginning of the limitation
period, employee committee members have dealt with the
management members in obtaining appropriate safety prizes
for employees throughout the plant. In October 1989 the
committee approved a safety prize of turkeys to be given to
200 winners of the November ‘‘Winter Safety’’ contest (G.C.
Exh. 5 at 66). The committee also approved the award of
corduroy jackets, 34 of which were ordered December 20,
1989 at a cost of $1690 (G.C. Exh. 5 at 295).
In January 1990 the committee approved prizes to be
given at the March safety meetings. The employees would be
shown a safety video, and all who got correct answers on a
quiz would be given a Croakie eyeglass holder as a prize.
In addition, there would be drawings for prizes of $12 driv-
ing gloves. The Company purchased 2500 Croakies at a cost
of over $6000. (Tr. 66–70, 92–94; G.C. Exh. 5 at 135, 291–
293.) The Company admits in its brief (at 37) that the
‘‘prizes may have been unique.’’
Among the other prizes the committee approved was a
smoke alarm given out in a drawing at the end of each safety
meeting in October 1990. Ordered in September, 100 of
them cost $1063. (G.C. Exh. 5 at 184, 282.)
(iii) Control unit safety committee
The evidence shows that since the October 4, 1989 begin-
ning of the limitation period, Control Unit employees have
taken safety complaints to employee committee members or
to the committee on which the employee members serve.
An example was when an employee took a traffic problem
to an employee member who brought it to the attention of
the committee, which discussed the problem and acted to re-
solve it (Tr. 1315–1317). Another example of a complaint
that the committee sought to resolve after it was taken by an
employee to an employee member was a complaint about
unpainted lines on safe walkways (Tr. 1209–1210, 1254–
1256).
Employee member Coggovia brought to the committee the
problem of empty water bottles floating around in the wind,
creating a traffic hazard. He had observed a hazardous situa-
tion of an empty water bottle flying across the road near the
building where he worked. ‘‘We know how people feel about
these things . . . because I know I wouldn’t want somebody
916 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
hitting . . . my car or vice versa, hitting somebody else.’’
The committee took the problem to the safety department on
the site and the matter was corrected at most locations. (Tr.
1210–1211.)
On the committee’s behalf, Coggovia took to other man-
agement two safety problems that an employee had brought
to him. One involved the fire extinguisher on the floor, dis-
cussed above, and the other involved washbowls in the
men’s room ‘‘about ready to fall down.’’ Both problems
were taken care of. (Tr. 1217, 1254.)
Employee members, since the beginning of the limitation
period, have also dealt with management members in obtain-
ing what they consider more appropriate safety awards.
The committee agreed to give many cash awards. The doc-
umentary evidence shows four $50 and four $25 awards (to-
taling $300) given in March 1990, the same number of cash
awards (totaling $300) in July 1990, five $50 and five $25
awards (totaling $375) in September 1990, and eight $50 and
10 $25 awards (totaling $650) in January 1991 (G.C. Exh.
43 at 28–31). Some of the safety programs were ongoing,
and the committee ‘‘discussed what would be appropriate
gifts or awards to be given out.’’ For one of the contests,
the committee decided that the ‘‘runners-up had a choice of
a smoke detector or fire extinguisher.’’ (Tr. 1329–1330, G.C.
Exh. 43 at 4).
In January 1991 the Company gave a $100 savings bond
to the winner of a safety-theme contest. The committee had
submitted an electronic mail message to all Control Unit per-
sonnel, asking for suggestions for the theme and stating
‘‘there would be an award to the winner.’’ There were ‘‘Dif-
ferent suggestions, what the possibilities’’ were for an appro-
priate award. The employee and management members of the
committee finally decided on the savings bond as something
‘‘personal.’’ (Tr. 1332–1333.)
In 1989 (outside the limitation period) the Company had
provided a full breakfast to Control Unit employees, and the
plant manager had promised another breakfast in 1990 for an
injury-free 1989. The committee started planning the second
breakfast around the end of September 1989, and the break-
fast was held in January 1990 for around 275 or 300 people.
(Tr. 1214–1215, 1322–1325.)
In early 1990 the committee decided to have another
breakfast if there were no injuries that year. After some inju-
ries occurred, committee members sought some get-to-gether
for the 1991 safety kickoff. The committee agreed on having
a continental breakfast, which was approved by Unit Man-
ager James Melville. About 200 people attended. (Tr. 1214,
1324–1328.)
(iv) Fitness committee
Before this committee was formed in late 1988 or early
1990, the Union had been seeking in negotiations with the
Company a fitness center like the Company’s health complex
at its Mannington Mills plant, where the facilities include a
weight room, jogging track, and tennis facility. The Com-
pany responded that it was not interested at the time. (Tr.
1607–1610.)
In January 1989 the Company approved the idea of out-
door facilities at the C Corral (a former parking lot) and spe-
cifically budgeted a walking/jogging track there (Tr. 1103–
1106; R. Exh. 27 at 3). Since the trial of the Design Team
case on May 2–4, 1989, employee members of the Fitness
Committee have continued to deal with the management
members, and the committee with higher management, seek-
ing additional facilities.
The minutes of the committee’s May 11, 1989 meeting
show that the employee members’ proposal for the construc-
tion of tennis courts was not accepted by the management
members. The minutes state that ‘‘Tennis courts may have
to be tabled until next season due to their expense.’’ (G.C.
Exh. 41 at 34–36.)
Employee member Edward Forrest continued to press for
the tennis courts in an electronic mail message on June 2,
1989. The message was sent to the plant manager, Manage-
ment Assistant Ferguson, Unit Manager Reinhart, Financial
Consultant Richard Jagers, and 67 others, including com-
mittee members. (G.C. Exh. 41 at 38–40.)
Later that summer, after picnic tables and sanitary facili-
ties were added, employee member Arthur Ebert suggested
a volleyball area, and a plant employee outside the com-
mittee suggested that a horseshoe pit also be provided. The
committee agreed, Ferguson approved, and the Company
provided the funds. (Tr. 1081, 1122–1124, 1390–1392.)
In January 1990, after the track and other facilities were
installed, employee Ebert proposed to the committee a 60-by-
60 foot open-air pavilion, set on concrete. ‘‘I knew at that
time that we [were] not going to be getting a separate [in-
door] facility per se in the area.’’ The committee approved
the proposed pavilion and two tennis courts, and Ferguson
suggested that Ebert make a presentation to the plant staff for
funding. (Tr. 1381–1386, 1423.) Ebert made the presentation,
informing the staff that the committee was proposing the
projects. The response was that ‘‘there was no money in the
budget for these projects at the time.’’ (Tr. 1387–1388.)
(v) Freon central safety committee
As found, one of the committee’s ‘‘key functions’’ when
it was created in December 1989 was to ‘‘Become a forum
for discussion and resolution of safety concerns.’’ Also as
found, employees in the Freon business unit submit F.U.S.S.
safety complaints to the committee for it to discuss and work
on to correct. As employee member Nipe credibly testified
(Tr. 792): ‘‘Basically F.U.S.S. is . . . a procedure that the
Freon [unit] has of correcting complaints.’’
Minutes of the committee’s June 15, 1990 meeting (G.C.
Exh. 11 at 80–81) show examples of safety problems with
which employee and management members dealt. The com-
mittee discussed ‘‘Comments . . . received from operators
on the quality of rubber gloves’’ and the need ‘‘for more air
lines and safety showers around the HF storage tanks.’’
Followups on F.U.S.S. complaints included the ‘‘Lack of air
masks at HF pumps.’’
Concerning safety audits, employee and management
members of the committee agreed to the assignment of em-
ployees outside the committee to serve with members of
management on nonpunitive audit teams to enhance the ef-
fectiveness of the safety audits.
When safety plans were being made in November 1989,
the old committee for inspections and audits was ‘‘not func-
tioning’’ and audits were ‘‘not being done in any established
way’’ (G.C. Exh. 11 at 6, 8). The new committee decided
at the December 5, 1989 organizational meeting (at 33) that
one of its ‘‘key functions’’ would be to ‘‘Perform auditing
917E. I. DU PONT & CO.
on safety performance throughout the area.’’ Minutes of the
committee’s January 18, 1990 meeting state (G.C. Exh. 11
at 45): ‘‘At present there is no area wide audit program.’’
On January 25 Supervisor Samuel Scull (who ‘‘sat on the
Central Safety Committee,’’ Tr. 789–790) made an assess-
ment. In a memorandum sent only to members of manage-
ment he observed (G.C. Exh. 11 at 50): ‘‘The one important
thing I think were missing here is a ‘Safety Audit’ using a
cross section of people on a routine basis’’ (Tr. 1710–1711).
Area Manager Moffett acknowledged (Tr. 1693) that there
was no active audit program at the time and that ‘‘Our pre-
vious years’ programs had fallen to disuse.’’ Employee mem-
ber Nipe confirmed (Tr. 800) that there were no employees
on the safety audits at that point.
At the next meeting of the committee on February 15,
1990, the employee members dealt with management mem-
bers on the subject of assigning Freon employees to serve
with members of management in making nonpunitive safety
audits. The committee agreed. (Tr. 799–801, 839, 1680; G.C.
Exh. 36 at 9.) I find it clear that this change in work assign-
ments of certain Freon employees involved working condi-
tions.
Employee members have also dealt with management
members in seeking exceptions to rules in the Safety How
manual for certain Freon employees, as shown in minutes of
the June 15 and August 10, 1990 committee meetings. On
August 10 a management member ‘‘stated the proposed ex-
ception to allow employees to NOT wear ‘Nomex’ in the
Service Bldg. will not be submitted’’ (by the committee to
the Company). (G.C. Exh. 11 at 81, 90.) This vetoed that
proposal.
Concerning employee members dealing with management
members on appropriate safety awards, the committee dis-
cussed future awards at its January 18, 1990 meeting and
designated some of its members to make the final determina-
tion. On January 22 the committee informed Freon employ-
ees that ‘‘the area will provide pizzas for lunch to everyone
in the area for every quarter of the year that we have a total
of one or less injuries’’ and ‘‘If we meet our annual goal,
there will be an area-wide dinner.’’ (Tr. 322–324, 816–817,
1698; G.C. Exh. 11 at 44, 49.) Employees were given pizza
when they reached the quarterly goal, but the annual goal
was not reached (Tr. 839, 1705).
(vi) Jackson lab programs committee
Employee members dealt with management members, and
the committee with Jackson Lab Director Peter Jesson, when
the committee planned and handled a major celebration for
Jackson Lab’s 25-year safety record. That milestone (of no
lost workday injuries) was expected to be reached in early
December 1989. (G.C. Exh. 24 at 17, 36 at 5; Tr. 626–627,
684.)
On August 3, 1989 (outside the limitation period), em-
ployee member Nelson made tentative reservations at the
Riverfront Dinner Theater in Philadelphia for January 25–26
and February 2, 1990 (G.C. Exh. 24 at 120–122).
After September 22 (the beginning of the limitation pe-
riod), as shown in minutes of its meetings, the committee
continued to make the arrangements, publicizing the event
among employees both at the plant and at their homes, sign-
ing up employees ‘‘with a guest,’’ providing bus transpor-
tation, and reserving an additional Friday night on February
9 ‘‘to accommodate demand’’ (G.C. Exh. 24 at 13, 15, 17,
19). Around November the committee sent a flyer to all
Jackson Lab employees, soliciting attendance dates (Tr. 629).
A total of 1176 individuals attended, costing the Company
$25,813.20 for the dinner and entertainment at $21.95 each
(G.C. Exh. 24 at 107). Around November 1989 the com-
mittee sought and received Director Jessup’s final authoriza-
tion for the large expenditure (Tr. 628–629).
Employee committee members also deal with management
members in adopting appropriate safety awards in various
ongoing programs. Minutes of the February 5, 1990 meeting
show that ‘‘It was decided to continue [the Safety Champion]
program in 1990.’’ Under this program, $100 dinner tickets
were given, costing the Company (including tax) up to $139
and $154. (G.C. Exh. 24 at 77, 151–165; Tr. 678). Minutes
of the December 10, 1990 meeting show that ‘‘Due to the
comments [in the committee’s 1990 safety programs ques-
tionnaire] and the general unpopularity of this [Safety Cham-
pion] program, it was decided to discontinue it for 1991’’
(G.C. Exh. 24 at 27, 36).
In 1990, for prizes in a safety puzzle contest, the com-
mittee approved an employee member’s suggestion of 10
pairs of baseball tickets costing a total of $180 (Tr. 617–618;
G.C. Exh. 36 at 5), but vetoed his suggestion for $18 Halon
fire extinguisher awards as too expensive (Tr. 619).
In an effort to please the employees, after abandoning cof-
fee and doughnuts, the committee decided from time to time
to provide pizza, pizza and soda, an ice cream buffet, or an
ice cream and fruit buffet for safety award parties. Invoices
in evidence show that these parties cost $2290.24 on October
23, 1989; $2751.66 on February 6, 1990; $2966.12 on May
3, 1990; $2765.95 on October 22–24, 1990; and $3238.52 on
February 4, 1991 (G.C. Exh. 24 at 51–53, 57, 76, 131–133,
137, 139, 145–147; Tr. 647–648). The committee was also
‘‘looking for feasible substitutes for the usual pizza or ice
cream’’ (G.C. Exh. 42 at 2).
At its March 1991 meeting the committee discussed the
Company’s Belle plant safety awards program, which pro-
vided a choice of 4 hour-off or two shares of DuPont stock,
but did not approve the program. The Company had referred
the program to the committee for ‘‘an assessment of the mer-
its of stock as opposed to other forms of recognition.’’ (G.C.
Exh. 24 at 80–83, 130.)
(vii) Physical distribution safety committee
The evidence shows that since the October 20, 1989 be-
ginning of the limitation period, employee members have
dealt with management members when the committee dis-
cusses employees’ safety problems that the employee mem-
bers bring to the committee (Tr. 1283, 1301, 1305).
The evidence also shows that when anything is given out,
such as the stipulated ‘‘$50, a fire extinguisher or a safety
knife and first aid package’’ about April 1990 (G.C. Exh. 36
at 11; Tr. 1279), the employee and management members
agree on the prize or award, because ‘‘anything we did was
with a consensus’’ (Tr. 1283). In 1990 the committee specifi-
cally agreed to the replacement of one safety program with
another (Tr. 1299).
In summary, I find there is persuasive evidence that the
employee members of the safety and fitness committees
‘‘deal with’’ the management members, and the employee
918 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
representation committees with the Company, concerning
safety, benefits, and fitness facilities, which concern working
conditions and are mandatory subjects of bargaining.
d. Concluding 8(a)(2) finding
The General Counsel in his brief (at 74–94, 102–108) and
the Union in its brief (at 85–108) contend that the six safety
committees and one fitness committee are company-domi-
nated labor organizations.
To the contrary, the Company contends in its brief (at
156–163) that ‘‘At best, there was an unrealized potential,’’
but ‘‘no domination or unlawful support.’’ Citing a number
of Board and court cases, it further contends (at 134–155)
that the committees are not labor organizations because they
(1) ‘‘do not function as representational bodies,’’ (2) are not
understood ‘‘as acting on behalf of non-participating bar-
gaining unit employees,’’ (3) ‘‘function only as a manage-
ment vehicle,’’ and (4) do not ‘‘deal with’’ it within the
meaning of Section 8(5). It argues that no agency relation-
ship exists between employee committee members and other
bargaining unit employees who do not elect or select them.
I agree with the General Counsel and the Union. Regard-
ing alleged domination, as found, the Company dominated
the formation of the Freon Central Safety Committee and
dominates the administration of all seven committees.
Regarding the Company’s contention that the committees
are not labor organizations, there is obviously little resem-
blance between these committees and the organizations in-
volved in the cases on which the Company relies. I find that
the cases are clearly distinguishable.
The group of employees in Fiber Materials, 228 NLRB
933, 934–935, 941 (1977), met with the employer only twice
‘‘merely to raise questions’’ about the employer’s fringe ben-
efit policies. The four teams in General Foods Corp., 231
NLRB 1232, 1234–1235 (1977), ‘‘in their aggregate,
constitute[d] the entirety of the nonsupervisory work force’’
at the employer’s testing and research center. Team members
spoke on their own behalf and there was no ‘‘agency rela-
tionship to a larger body.’’
The employees council in John Ascuaga’s Nugget, 230
NLRB 275, 276 (1977), did not ‘‘deal with’’ the employer,
but merely performed ‘‘a purely adjudicatory’’ function of
rendering ‘‘a final decision’’ on employee grievances. Simi-
larly the grievance committee in Mercy-Memorial Hospital,
231 NLRB 1108, 1121 (1977), did not ‘‘deal with’’ the em-
ployer. The committee ‘‘was created simply to give employ-
ees a voice in resolving the grievances of their fellow em-
ployees at the third level of [the] grievance procedure, not
by presenting to or discussing or negotiating with manage-
ment but by itself deciding the validity of the employees’
complaints and the appropriateness of the disciplinary action,
if any, imposed.’’ The single management member, ‘‘who
has only one vote like any employee member on the com-
mittee, is bound by the decision reached by a majority of the
committee.’’
Also the communications committee in Sears, Roebuck &
Co., 274 NLRB 230, 243–244 (1985), did not ‘‘deal with’’
the employer on behalf of the employees. It was a committee
on which a ‘‘rotating system was used so that each employee
in each department would have an opportunity to sit in on
two’’ meetings with the manager ‘‘to give input in order to
help solve management problems.’’
Likewise in NLRB v. Scott & Fetzer Co., above, 691 F.2d
at 289–290, 294–295), the court held that the committee,
which no one viewed ‘‘as anything more than a communica-
tive device,’’ did not ‘‘deal with’’ the employer. The com-
mittee was established to ‘‘provide to as many employees as
possible the opportunity’’ to contribute ‘‘ideas for improving
operations.’’ The court found that ‘‘The continuous rotation
of Committee members to ensure that many employees par-
ticipate makes the Committee resemble more closely the em-
ployee groups speaking directly to management on an indi-
vidual, rather than a representative, basis as in General
Foods,’’ above.
Having found (1) an agency relationship existing between
the employee committee members and the bargaining unit
employees they represent and (2) persuasive evidence that
the employee members and the employee representation
committees ‘‘deal with’’ the Company concerning safety,
benefits, and fitness facilities, which concern working condi-
tions as well as being mandatory subjects of bargaining, I
find that the committees are labor organizations within the
statutory definition.
I therefore find, as alleged, that the Company unlawfully
dominated the formation of the Freon Central Safety Com-
mittee and dominates the administration of all six safety
committees and the fitness committee, violating Section
8(a)(2) and (1) of the Act.
4. Bypassing the Union
The General Counsel contends that the Company, in by-
passing the Union and dealing instead with the safety and fit-
ness committees concerning matters subject to collective bar-
gaining, ‘‘necessarily violated Section 8(a)(1) and (5).’’ I
agree.
The Union is the exclusive bargaining representative of the
employees. As held by the Supreme Court in Medo Photo
Supply Corp. v. NLRB, 321 U.S. 678, 683–684 (1944):
The National Labor Relations Act makes it the duty
of the employer to bargain collectively with the chosen
representatives of his employees. The obligation being
exclusive . . . it exacts ‘‘the negative duty to treat with
no other.’’
Citing Medo Photo, the Board held in Modern Merchan-
dising, 284 NLRB 1377, 1379 (1987):
It is well established that the Act requires an em-
ployer to meet and bargain exclusively with the Union.
Further, an employer who chooses to deal directly . . .
with a representative other than the designated bar-
gaining representative regarding . . . conditions of em-
ployment risks violating Section 8(a)(5) of the Act.
It is clear [that the Respondent’s] bypassing the Union
. . . has had the effect of eroding the Union’s position
as exclusive representative. Accordingly, we find the
Respondent has failed in its duty to bargain with the
Union and has violated Section 8(a)(5) and (1) of the
Act.
Having found that the seven safety and fitness committees
are company-dominated labor organizations, I find by dealing
directly with them concerning working conditions and man-
919E. I. DU PONT & CO.
datory subjects of bargaining, the Company has unlawfully
bypassed the Union and failed in its duty to bargain exclu-
sively with the Union, violating Section 8(a)(5) and (1) of
the Act.
B. Denied Employee Use of Electronic Mail
The complaint alleges that the Company maintains ‘‘a rule
prohibiting employees . . . from using [its] electronic mail
system for distributing [union] literature and notices while
permitting the employees to use [its] electronic mail system
for distributing literature and notices on all other topics,’’
violating the employees’ Section 7 rights (G.C. Exh. 1RR
pars. 7, 22).
The evidence indicates that in this large chemical plant
and research laboratories, where a staff of 3700 people are
employed producing about 750 different products (Tr. 41),
the electronic mail has become an important, if not essential,
means of communication. The seven safety and fitness com-
mittees, including some of the employee members (G.C.
Exh. 41), are permitted to use it. As found, the plant man-
ager used it to notify all employees that they did not believe
the judge’s decision in the prior Design Team case was
‘‘well-founded.’’
The large volume of electronic mail messages in evidence
reveals that the Company permits employees to use the elec-
tronic mail to distribute a wide variety of material on many
subjects. These messages (G.C. Exh. 23), sent from employ-
ees’ computer terminals to sometimes hundred of other ter-
minals where the messages can be read on the screen or
printed out (Tr. 76–77), include poems, notices, or discourses
on such topics as boredom, drugs, educational co-ops, Erich
Fromm, Federal Express, higher education, IRS, liberal arts,
life, mortality, philosophy, TV programs, religion, riddles
and attempted answers, skin cancer, victory, and words of
wisdom.
Yet the Company prohibits any employee, whether or not
a representative of the Union, from using the electronic mail
to distribute any union literature or notice (Tr. 488). I find
that this prohibition clearly is discriminatory.
Moreover, whether or not intended, this prohibition tends
to diminish the representative role of the Union and to erode
union support.
In its dealings with the committees, the Company dem-
onstrates to the employees a greater willingness to grant ben-
efits and solve their safety problems if they go through the
committees rather than through the Union. As found, the
Company even permitted the Control Unit Safety Committee
to use the electronic mail to invite employees having ‘‘any
safety situation to feel free to contact any member of the
committee,’’ instead of going through the Union. Also as
found, an interoffice management memorandum reveals that
the Company was considering a Fitness Committee recre-
ation budget of $10,000 for an antiunion purpose of com-
peting with the Union.
The Company argues in its brief (at 178) that there are
‘‘less costly alternative methods’’ for the Union to commu-
nicate with the employees and that there are ‘‘legitimate,
non-discriminatory bases for the [Company] to deny elec-
tronic mail access to the [Union] for Union business.’’
I do not deem it necessary, however, to rule on whether
the Union would otherwise be entitled to use this common
means of plant communications for contacting the bargaining
unit employees it represents. I do find that having permitted
the routine use of the electronic mail by the committees and
by the employees to distribute a wide variety of material that
has little if any relevance to the Company’s business, the
Company discriminatorily denies employees use of the elec-
tronic mail to distribute union literature and notices.
I rely on the Board’s holding in Northeastern University,
235 NLRB 858, 865 (1978), enfd. in relevant part 601 F.2d
1208, 1216–1217 (1st Cir. 1979). The Board held that the
employer ‘‘violated Section 8(a)(1) of the Act by denying its
employees the use of [a room, which was normally available
to employees, for a meeting of the 9 to 5 Organization] for
purposes of engaging in activities protected by Section of the
Act.’’ It cited its holding in Columbia University, 225 NLRB
185 (1976), involving that university’s refusal to permit a
union organizing committee composed of its employees to
use the facilities of a center that the university made avail-
able to both on- and off-campus student groups: ‘‘Such dis-
criminatory treatment interferes with employees in the exer-
cise of the rights guaranteed in Section 7 in violation of Sec-
tion 8(a)(1) of the Act.’’
I therefore find that in the circumstances of this case, the
rule prohibiting employees from using the electronic mail
system for distributing union literature and notices violates
Section 8(a)(1) of the Act.
C. Safety Conferences and ‘‘Safety Pause’’
In March 1983 the Company held an all-day safety con-
ference ‘‘to formulate new ideas that would result in a higher
level of motivation and commitment for improved safety per-
formance’’ (R. Exh. 23 at 2). In 1989 the Company resumed
such conferences, holding them offsite quarterly in December
1989 and March, June, September, and December 1990 (Tr.
829).
The December 8, 1989 safety conference was announced
in a October 25 notice to all employees. The notice (G.C.
Exh. 26) stated that the conference was called ‘‘to generate
new ideas that will improve safety performance,’’ that this
first conference would accommodate about 30 volunteers,
and that all employees ‘‘will be attending a Safety Con-
ference in the future.’’ The Company had previously invited
the union president to participate (Tr. 1773). About 40 em-
ployees and members of management from all the business
units in the plant attended the conference (Tr. 759–760).
The stated objective of the conference, which was ‘‘run
along lines of PEP’’ (Tr. 804, 1840), was to ‘‘Increase per-
sonal commitment, responsibility, and acceptance of safety as
our #1 concern’’ (R. Exh. 38). The slogan was: ‘‘You make
the difference’’ (Tr. 828, 1775). The employees were asked
to give ‘‘their personal experiences’’ and were told ‘‘not to
act as representatives’’ to solve problems for their areas.
They were permitted to make whatever safety suggestions
they had. It was the responsibility of the resource in each
session to ensure that the employee and management partici-
pants did not discuss or deal with bargainable issues. (Tr.
833, 1055, 1780–1783, 1791, 1824.)
In February 1990 the new unit manager of Environmental
Resources decided to hold a separate conference, called a
‘‘Safety Pause,’’ for gathering ‘‘a lot of information’’ to
reach the safety goals in that business unit (Tr. 1550; G.C.
Exh. 35). Attended by 50 of the 130 employees and members
of management, the Safety Pause was held offsite in the
920 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
same manner as the plantwide safety conferences (Tr. 1508,
1551–1552; C.P. Exh. 9).
The General Counsel and the Union (in their briefs at
127–129, 113–114) contend that the Company was unlaw-
fully dealing directly with the employees. To the contrary, I
agree with the Company (in its brief at 164) that both the
safety conferences and the Safety Pause ‘‘fall within the
ambit of permissible communication between an employer
and its employees.’’ In view of the precautions taken to pre-
vent the participants from discussing or dealing with
bargainable issues, I find applicable the Board’s ruling con-
cerning an employee questionnaire in Logemann Bros. Co.,
298 NLRB 1018, 1019–1020 (1990):
We find that the distribution of the questionnaire was
merely permissible communication between the Re-
spondent and its employees, was consistent with the
Respondent’s past practice of communicating with em-
ployees, and was motivated by legitimate business con-
cerns.
I therefore find that the holding of the safety conferences
and the Safety Pause did not violate the Act.
D. Purported Grievance Adjustment
The complaint alleges that the Company violated Section
8(a)(5) and (1) by meeting with employees in the Jackson
Lab Information Services Group ‘‘for the purpose of adjust-
ing employee grievances’’ without giving the Union the op-
portunity to be present.
This allegation involves informal complaints by employees
to the group supervisor about the uncompleted fire protection
system being installed, a discussion of the problem at a reg-
ular staff meeting, and a meeting with the fire marshal, who
showed a video and answered questions (Tr. 1725–1733,
1737–1739; R. Exh. 39).
No grievance was filed and therefore no grievance was ad-
justed. I find that the allegation lacks merit.
CONCLUSIONS OF LAW
1. By dominating the formation and administration of the
Freon Central Safety Committee a/k/a Fluorochemicals Cen-
tral Safety Committee and Fluorochemicals Safety and
Health Excellence Committee and dominating the administra-
tion of the
Antiknocks Area Safety Committee,
Chambers Works Fitness Committee a/k/a Chambers
Works Recreation/Activities Committee,
Control Unit Safety Committee,
Jackson Lab Programs and Publicity Committee,
Physical Distribution Safety Committee a/k/a Envi-
ronmental Resources Safety Committee, and
Programs and Publicity Committee of the Chambers
Works Central Safety and Occupational Health Com-
mittee
all of which are labor organizations within the meaning of
Section 8(2)(5), the Company has engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(2) and (1) and Section 2(6) and (7) of the Act.
2. By dealing directly with the committees, bypassing the
Union as the exclusive bargaining representative of the pro-
duction and maintenance employees and the office and cler-
ical employees in separate appropriate bargaining units, the
Company has violated Section 8(a)(5) and (1).
3. By prohibiting bargaining unit employees from using
the electronic mail system for distributing union literature
and notices, the Company has violated Section 8(a)(1).
4. The Company has not violate the Act by holding the
safety conferences and Safety Pause.
5. The Company has not unlawfully adjusted grievances
without affording the Union an opportunity to be present.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Still opposing any joint labor-management safety commit-
tees, although ‘‘most common’’ in unionized settings, the
Respondent urges in its brief (at 180) ‘‘that the Board should
seriously consider the implications of interpreting and apply-
ing the Act to disturb the safety management systems at
issue.’’ The Respondent has not shown why the offered co-
operation of the Union, which repeatedly has informed it that
health and safety are the Union’s No. 1 priority, would not
contribute to ‘‘the goal of maintaining and heightening indi-
vidual employee safety awareness’’ without eroding the
Union’s status as the exclusive bargaining representative.
The Respondent having bypassed the Union and dealt di-
rectly with the six safety committees and one fitness com-
mittee, which are found to be unlawfully dominated labor or-
ganizations, I find that it must cease dealing with and com-
pletely disestablish the seven committees.
[Recommended Order omitted from publication.]