E. I. Du Pont De Nemours & Co.

National Labor Relations Board - Board Decisions

Sep 24, 1985

276 N.L.R.B. 335 (N.L.R.B. 1985)

E I DU PONT & CO 335
E. I. du Pont de Nemours & Company and Grasselli
Employees Independent Association of East
Chicago , Inc. Case 13-CA-23702
24 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On -26 September 1984 Administrative Law
Judge Michael D. Stevenson issued the attached
decision. The Respondent filed exceptions and a
supporting brief, and the General Counsel and the
Charging Party each filed an answering brief to the
Respondent's exceptions.
The National Labor Relations Board-has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order
as modified. -
We agree with the judge's determination that the
Respondent has unlawfully refused to furnish cer-
tain information concerning its job restructuring
proposal. An employer has a statutory duty to pro-
vide a union, on request, with relevant information
the union needs to carry out its collective-bar gain-
ing responsibilities. NLRB v. Acme Industrial Co.,
385 U.S. 432, 435-436 (1967). Such obligation is
measured by a liberal "discovery-type" standard.
Id. at 437. Certain of.the information requested by
the Union in this case is presumptively relevant be-
cause it concerns wages, hours, "and terms and con-
ditions of employment of unit employees. Concern-
ing other portions of the Union's information re-
quest, such as comparative production cost data for
other Du Pont plants, the General Counsel has met
her burden of showing some relevance to the
Union's bargaining responsibilities. Thus, the Gen-
eral Counsel has made a prima facie showing of
relevance for part of the Union's request.
The Respondent asserts as a defense that the mo-
tivation behind its restructuring proposal is its
desire for increased productivity -and not financial
hardship, as assumed by the Union's request for a
number of the information items. Having never ad-
vanced a claim during negotiations that it is finan-
cially pressed to continue without implementing its
job restructuring proposal, the Respondent argues,
it has no obligation to substantiate such a claim.
We find merit to the Respondent's defense as it ap-
plies to those portions of the information request
which would be relevant only if the Respondent
had alleged financial hardship. We thus disagree
with the judge's premise that, in restructuring jobs
in a bargaining unit, "there is virtually a presump-
tion of economic motive for which the Company
should be required to disclose the requested infor-
mation."'
In NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956),
the Supreme Court held that a union is entitled to
evidence substantiating an employer's bargaining
position of economic inability to pay proposed
wage increases..The Court reasoned that "[i]f such
an argument is important enough to present in the
give and take of bargaining, it is important enough
to require some sort of proof of its accuracy." Id.
at 152-153. The Court added (Id. at 153):
We -do not hold, however, that in every case
in which economic -inability is raised as an ar-
gument against' increased wages it automatical-
ly follows that the employees are entitled to
substantiating evidence. Each case must turn
upon its particular facts. - '
Contrary to the judge, and consistent with the
Supreme Court's pronouncement in Truitt, we do
not' find that the Respondent made a plea of finan-
cial hardship in bargaining over its proposal. From
the beginning, -the Respondent's site services super-
intendent Norman Bell made clear that the Compa-
ny's plan- was one that would increase flexibility in
formerly compartmentalized jobs and thereby im-
prove production. In a 17 November 19832 letter
to Union President Larry Thrall, the Respondent
gave the Union notice of its intent to terminate
their collective-bargaining agreement under provi-
sions stated in the contract. In that letter, Plant
Manager D. V. Luebke described production job
restructure as an "important change to improve the
productivity of the East Chicago Plant," listing it
among items on a larger management agenda to
"strengthen competitiveness" at the plant. .
Subsequently, in meetings with employees to dis-
cuss. safety matters, Luebke did express concern
that 'certain departments in the plant were not eco-
nomically healthy, but at the hearing he specifical-
ly denied that he had tied discussion of the job re-
structuring proposal to this concern. Luebke re-
called stating in one such meeting with the insula-
tors that "job restructure wouldn't make or break
the plant." In the Company's letter to employees
before the contract's termination, Luebke described
job restructure as follows:
Another program that the union and manage-
ment have been bargaining for.over six months
' We also disavow the judge's discussion of the continuing validity of
Empire Terminal Warehouse Co., 151 NLRB 1359 (1965), affd sub nom.
Teamsters Local 745 v NLRB, 355 F 2d 842 (D C Or 1966)
2 All dates are 1983 unless otherwise indicated
276 NLRB No. 34
336 DECISIONS OF'NATIONAL LABOR RELATIONS BOARD
is production job restructure . At the core of
the proposal is a new way of working on the
plant . We have proposed combining and
broadening the operating area assignments to
give greater flexibility and variety in the jobs.
We do not find that these communications from
the Respondent to the Union and to employees" evi-
dence a plea of poverty to justify its proposal. No
magic words are necessary to express such a plea
within the meaning of Truitt, but the words and
conduct must be sufficiently specific to link its bar-
gaining position to economic hardship . See Atlanta
Hilton & Tower , 271 NLRB 1600 .( 1984). The Re-
spondent 's expressed concern with market competi-
tiveness - in its meetings and correspondence, with
employees is not alone sufficient to establish this
linkage . See Craig & Hamilton Meat Co., 271
NLRB 853 ( 1984). _ '
Accordingly , we- find that the Respondent violat-
ed Section 8(a)(5) and (1) of the Act by failing to
supply the Union with the following information
relevant to bargaining over the job restructure pro-
posal:
Feasibility studies , surveys or reports per-
formed internally or commissioned, to outside
consultants relating to the Respondent's pro-
posal to restructure unit jobs; inter- and intra-
company memoranda , reports , communica-
tions , notes or records related to the Respond-
ent's proposal to restructure unit jobs ; data on
production costs on a per.unit basis at the East
Chicago plant , plus known comparative per
unit costs at other plants operated by both the
Respondent and the Respondent 's competitors;
and income statements and supporting sched-
ules for the "last 3 full years" showing the Re-
spondent 's labor costs.
We do not find relevance, presumed or demonstrat-
ed, in other income statements and supporting
schedules sought by the Union . Insofar 'as the Re-,
spondent contends that supplying the bargaining
agent with the requested information would com-
promise the confidentiality of proprietary informa-
tion, we shall also revise the judge 's recommended
Order to provide that the Respondent shall furnish
the requested information subject to bargaining in
good faith regarding the conditions under which
the information may be furnished , so that access is
provided in a manner consistent with monitoring
appropriate safeguards protective of the Respond-
ent's confidentiality concerns.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law
4.
"4. By refusing to provide the Union with the
following information, the Respondent has failed to
bargain in good faith with the Union in- violation of
Section 8 (a)(5) and ( 1) of the Act:
Feasibility studies, surveys , or reports per-
formed internally or commissioned to outside
consultants relating to the Respondent's pro-
posal to, restructure- unit jobs ; inter- and intra-
company memoranda, reports , communica-
tions , notes or records related to the Respond-
ent's proposal to restructure unit jobs ; data on
production costs on a per unit basis at the East
Chicago plant, plus known comparative per
unit costs at other plants operated by both the
Respondent and the Respondent 's competitors;
and income statements and supporting sched-
ules for the `last 3 full years ' showing the Re-
spondent 's labor costs."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent , E. I. du Pont de Nemours & Company,
East Chicago, Indiana , its officers , agents , succes-
sors, and assigns , shall take the action set forth in
the Order as modified.
1. Substitute the following for paragraph 2(a).
"(a) Furnish the Union , on request , the following
information subject to bargaining in good faith con-
cerning the conditions under which the information
may be supplied such that access is.provided in a
manner consistent with maintaining appropriate
safeguards protective of the Respondent 's legiti-
mate confidentiality interests:
Feasibility studies , surveys , or reports per-
formed internally or commissioned to outside
consultants relating to the Respondent's pro-
posal to restructure unit jobs ;' inter- and intra-
company memoranda, reports, communica-
tions, notes , or records related to the Respond-
ent's proposal to restructure unit jobs ; data on
production costs on a per unit basis at the East
Chicago plant , plus known comparative per
unit costs at other-plants operated by both the
Respondent and the Respondent's competitors;
and income statements and supporting sched-
ules for the `last. 3 full years' showing the Re-
spondent 's labor costs." ,
2. Substitute the attached notice for that of the
administrative law judge.
E I DU PONT & CO 337
APPENDIX
. NOTICE To EMPLOYEES -
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An-.Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
- To act together for other mutual aid or pro-
tection '
To choose not to engage 'in any of these
protected concerted activities.
WE WILL NOT refuse to bargain collectively with
Grasselli Employees Independent Association of
°'East Chicago, Inc. by refusing on request to supply
relevant information needed by the' Union to repre-
sent the employees it represents employed by us-at
our East Chicago plant.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, furnish the Union with the
following information subject to bargaining in good
faith concerning the conditions under which the in-
formation may be supplied, such that access is pro-
vided in a manner consistent with maintaining ap-
propriate safeguards protective of our confidential-
ity interests:
Feasibility studies, surveys, or reports per-
formed internally or commissioned to outside
consultants relating to our proposal to restruc-
ture unit jobs; inter- and intra-company'memo-
randa, reports, communications, notes or
records related to our proposal to restructure
unit jobs; data on production costs on a per
unit basis at the East Chicago plant, plus
known comparative' per unit' costs at other
plants operated by both us and our competi-
tors; and income statements and supporting
schedules for, the ."last- 3 full years" showing
our labor costs.
E. I. DU PONT DE •NEMOURS & COM-
PANY
Allen Hellman, Esq., Chicago, Illinois, for the General
Counsel.
Hasting S. Trigg, Jr., Wilmington, Delaware, for the Re-
spondent.
Barry A. Macey, Esq. (Segal and Macey), Indianapolis, In-
diana, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge
This case was tried before me at Chicago, Illinois, on
April 11, 1984,1 pursuant to a complaint issued by the
Regional Director for the National Labor Relations
Board for Region 13 on December 29, which is based on
a charge filed by Grasselli Employees Independent Asso-
ciation of East Chicago, Inc (the Union) on October 20.
The complaint alleges that E. I. du Pont de Nemours &
Company (Respondent) has engaged in certain violations
of Section 8(a)(1) and- (5) of, the National Labor Rela-
tions Act (the Act).
Issues
Whether Respondent violated the Act by refusing to
provide the Union with certain requested information
which allegedly related to Respondent 's proposal to re-
structure and reduce the number of job positions in the
collective-bargaining unit.
All parties were given full opportunity to participate,
to introduce relevant evidence , to examine and cross-ex-
amine witnesses , to, argue orally ,- and to file briefs . Briefs,
which have been carefully 'considered , were filed on
behalf of the General Counsel, the Charging Party, and
Respondent.
On the entire record of the case , and from my obser-
vation of the witnesses and their . demeanor, I make the
following - -
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent admits that it-is a Delaware corporation
engaged in the business of manufacturing and marketing
various chemical products, and that it has a manufactur-
ing plant located in East Chicago, Indiana It further
admits that during the past calendar and fiscal year, in
the course and conduct of its business, it shipped goods
and materials valued in excess of $50,000 from its East
Chicago plant to points outside the State of Indiana, and
received other goods and materials, also valued in excess
of-$50,000, at its East Chicago plant from points located
directly outside the State of Indiana Accordingly, it
admits, and I find, that it is an employer engaged in com-
merce and in a business affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act. •
II. THE LABOR -ORGANIZATION INVOLVED
Respondent admits, and I find, that Grasselli Employ-
ees Independent Association of East Chicago, Inc. is a
1 All dates herein refer to 1983 unless otherwise indicated
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts
About October 20, 1972, the Union was certified as
the exclusive bargaining representative of all hourly paid
production and maintenance employees at Respondent's
East Chicago, Indiana plant Then, as now, the Union
was not associated. or affiliated with any other labor or-
ganization, but existed only in that single plant. At ' the
present time, approximately 130 to 135 employees are in
the bargaining unit. In addition, approximately seven em-
ployees are laid off, but maintain callback rights for 2
years pursuant to a provision of the expired contract.
The expired contract referred to above is the last in a
series of contracts beginning after the October 1972 cer-
tification. The most recent contract, now expired, was
effective October 14, 1981, and contained what is com
monly called an "evergreen clause." (G.C. Exh. 2, art.
XV, pp. 46-47.) That is, the agreement contained a
clause that it would continue in full force and effect until
terminated by either party with 60 days' written notice.
As will be more fully described below, notice of termina-
tion was given by Respondent, and no new agreement
has been reached.
During 1982, company officials, including witnesses at
the hearing Donald Luebke, plant manager, and Norman
Bell, site services superintendent, became concerned with
plant efficiency and productivity. Allegedly, this concern
was not based on economic factors such as - a money-
losing operation or competitive pressures, but rather on
management's inherent desire to improve operations. Ul-
timately, Bell, in particular, with the assistance of others,
prepared a "Job Restructure Proposal." This proposal
basically reorganized the three production divisions of
the plant (G.C. Exh. 3; attached as an appendix).
The proposal was first tendered to the Union at a
union-management meeting requested by Respondent and
held on May 5. This was the first in a series of approxi-
mately 19 meetings, the last of which was held on De-
cember 9.2 All meetings were held during worktime at
the East Chicago plant. Chief spokesman for the Union
was Larry Thrall, president of the Union since 1979 and
an employee of Respondent for about 13 years. He was
assisted by four other members of the Union. These five
constituted the Union's executive board. Only Thrall tes-
tified, as he attended all meetings . As to the remainder of
the union contingent, there was some variation in the
persons attending the several meetings , but these changes
in personnel were immaterial. For the Company, Bell
was the chief spokesman. He, in turn, was assisted by
various other company. officials who, like those of the
Union, changed from time to time.
Returning to the first meeting on May 5, I note that
Bell began his remarks by complaining that production
jobs were too restrictive and compartmentalized. Thus,
to increase flexibility and, therefore, production, the job
2 The parties agreed that any post - 1983 meetings held were not rele-
vant to this case.
restructuring proposal was introduced. Noting that as a
result of the proposal the bargaining unit would experi-
ence a net loss of 9 jobs, and that 21 job classifications
would be reduced to 6, Thrall commented that several
years prior the Company had attempted to cause a simi-
lar reorganization. However, this was apparently. without
any loss of jobs. When the Union failed to approve the
plan, the Company dropped it. With respect to the job
losses , Bell explained first that employee retraining under
the proposal would take between 12-18 months. During
that time, all current employees would be retained, but
normal attrition would continue. -Then, after retraining
had been completed, up to nine employees considered to
be nonessential under the proposal would be laid off. In
addition, only 68 unit employees out of the total'of 130
would be affected by the proposal.
While the meetings between the Union and manage-
ment were occurring, another series of meetings between
the union leadership and its members was occurring. The
first of these occurred on August 31, then three consecu-
tive Wednesday meetings followed. At the union meet-
ings , members asked questions, such as why the job re-
structuring was necessary, who would be laid off and for
how long, and what did retraining involve.3 These and
similar common sense questions were presented to Thrall
and other union leaders , but they lacked information to
convey to members.' Accordingly, on October 4 Thrall
prepared a letter for Respondent seeking certain informa-
tion on matters raised both at the union-management
meetings and at the intraunion meetings. The letter reads
as follows (G.C. Exh. 5):
October 4, 1983
Donald Luebke
Plant Manager
E.I. DuPont•& Co.
East Chicago, IN
Dear Sir:
The Union, -Grasselli Employees-Independent As-
sociation, hereby requests the following information
in order to intelligently_ and in good faith bargain
with respect to wages, benefits, and conditions of
employment, and to specifically respond to the
Company's proposed restructure of Bargaining Unit
jobs: - -
What members of management at the corpo-
rate and local level have discussed job restruc-
ture? How many meetings of management offi-
cials were held at which job restructure was dig-
3 One question in particular seems especially relevant Since Respond-
ent's wage policy was based on a survey of competing companies, even if
the job restructuring resulted in an enormous production increase, would
Respondent 's wage policy remain unaffected Bell opined for Respond-
ent; informally , that he thought no wage increase would result , even if
production doubled
* On May 26, Respondent prepared • for supervisors only a set of
"Questions" which employees were likely to ask and suggested answers.
(G C. Exh 7) These were prepared on a personal and confidential basis
and not intended for distribution to employees . The Union and/or the
General Counsel obtained a copy, but the record does not show the date
obtained.
E. I. DU PONT & CO.
cussed? Who was present? What was the sub-
stance of these meetings?
Are there any feasability-[sic] studies,' surveys,
or reports done or commissioned by outside con-
sultants or' done internally relating to job restruc-
ture? If so, we request copies of these.
We request copies of inter and intra company
memoranda, reports, communications, notes, tele-
phone memos, or records that are in any. way re-
lated to a consideration of job restructure at the
East Chicago Plant.
Over the past three calendar years (1980, 1981,
1982) and 1983 to date, separately and as a con-
solidation, what has been the relative market
share for the East Chicago Plant for each of its
products expressed as a percent of the total
market? I -
For each product, for the time periods request-
ed, what is the per unit total cost compared to
the per unit selling price?
For each product, for the time periods request-
ed, what is the total volume produced and/or
sold or transferred?
What is the cost of producing each unit of
each product at the East Chicago Plant com-
pared to known per unit costs at other E:I
DuPont plants and compared to known per unit
costs of other competitors?
What is the projected cost savings to the East
Chicago Plant for each of its products through
the proposed job restructure?
- We request full access to the Company's finan-
cial data, as partially described below.
Income statements for the last :three full years.
These should include detailed supporting sched-
ules of. cost of goods sold, including breakdowns
of labor costs and supervisory and other nonlabor
wages and benefits;. and selling , general and ad-
ministrative expenses , including details on man-
agement salaries and benefits. The statements
should also show the amount of corporate over-
head expenses allocated to the Plant, together
with a description of and supporting data on the
formula used in distributing such expenses be-
tween plants.
Federal and State income tax returns for the last
three years.
Interim income statements and supporting sched-
ules for the latest period for which the books
have been closed, as well as the comparable
period for the preceding, year.
Cost and price information for intracompany
transfers of products, if any, : including : the meth-
ods used in arriving at "selling" or "purchase"
prices, - pointing out any similarities or differences
with outside transactions involving comparable
products or services; and breakout [sic] of intra-
company transactions from total sales and pur-
chases. -
Consolidating income statements, where applica-
ble, showing in detail the elimination arising from
intraplant transactions.
339
Corporate-wide, business segment, and/or divi-
sional income statements, balance sheets, and any
other financial statements that reflect how this
plant fits in with the corporation's overall busi-
ness.
The income statements should-be audited by
an outside certified public accounting firm, to-the
_ effect that they represent fairly the financial posi-
tion of the plant in conformity with generally ac-
cepted accounting principles. If a complete audit
has not been performed, the accounting firm
should outline the extent of its examination, and
should certify that the statements agree with
those which were included in the corporation's
consolidated financial statements.
Also required is access to the company's and
the plant's general journal, general ledger, and
payroll register.
It is the Union's -position that as long as the Com-
pany's job restructure proposal is on the bargaining
table, this information is necessary for the Union to
evaluate the proposal, ascertain' the -Company's
present competitive position, discover the proposal's
possible or probable effect on competitiveness, and
to formulate the Union's response to the proposal,
and/or to develop a counterproposal. Bargaining
cannot be concluded on this issue until a time subse-
quent to the Union's. receipt of the above informa-
tion.
Sincerely,
/s/ Larry E. Thrall
President ' -
G.E.I.A. .
Upon receipt of the letter,. Bell told Thrall that the
Union's request would be taken under advisement and a
response would be made later.
At a Respondent-Union meeting on October 17, Bell,
responded to the Union's request for information. Bell
stated that the information desired was not relevant to
bargaining and that it could possibly hinder the negotia-
tions between the parties. 'In addition; Bell stated that
certain of the information had never existed, certain of it
had been destroyed,-and certain of it had been supersed-
ed by the proposal itself.' In sum, at this meeting Re-
spondent gave the Union nothing.5
On October 20, the Union filed a charge with the
Board, which ultimately led to the. instant complaint.
Subsequent to the October 17 meeting, there followed
about four or five additional meetings which resulted in
no progress on the Company's proposal. On November
17, Luebke, the plant manager, sent a letter to Thrall; it
reads as follows (G.C. Exh. 4):
5 Prior to October 1 , Respondent had given the Union job descriptions
and job evaluations for the new positions proposed by the Company (R
Exhs 1-5) - '
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
November,17, 1983
L. E. Thrall, President
Grasselli Employees Independent
Association of East Chicago, Inc.
East Chicago Plant
Dear Mr. Thrall: -
Many changes have been made to strengthen the
competitiveness of the East Chicago Plant. These
changes include reductions in salary personnel,
major expenditures' in both Contact. and Ludox*,
and relaxation of S02 limits for the contact unit.
Another important change to improve the pro-
ductivity of the East Chicago Plant is production
job restructure. Management and the -Union have
been discussing . this, restructure proposal for over
five months with little progress toward reaching
-agreement.
In line with these discussions and with our stated
desire to move negotiations toward an endpoint,
management is advising the Union of its desire to
terminate the Working Agreement as provided for
in Article XV, Section 1, of the Agreement dated
October 14, 1981. '
- It is management's intent to continue our discus-
sions and respond to your concerns and proposals
with the objective of reaching agreement 'on a new
production job structure. .
Sincerely, -
/s/D. V. Luebke'
Plant Manager
In his testimony, Luebke described still a third series
of meetings dealing with the Company's proposal. Called
to discuss safety procedures in the plant, the meetings
were traditionally opened to include other subjects of
concern to employees after the safety matters had been
discussed. The first of these occurred with the labor pool
employees in late July or early August and the second
with the insulators in late summer. The latter meeting
lasted almost 4 hours and only the first 30 minutes or so
concerned safety matters. At both of 'these meetings
Luebke discussed the financial condition of the Company
with special emphasis on certain departments which
-were not financially healthy. Luebke stated at the meet-
ing and testified that while improvement in the Compa-
ny's economic health was not the stimulous for the job
-restructure proposal, yet the job restructuring would
cause the economic health of certain departments to im-
prove.
On December 13, Luebke wrote a letter, a copy of
which *as mailed to'each of Respondent's unit employ-
ees. It reads as follows (G.C. Exh. 6):
December 13, 1983
Dear Fellow Employees:
There has been concern expressed recently about
some steps we have taken to improve competitive
health of our plant. I would like to take this oppor-
tunity to put these steps in context, lend perspective
from my vantage point, and allay those concerns.
Management has`an on-going responsibility to its
customers, employees, and shareholders to operate
business as efficiently as possible. We at East Chica-
go have been fulfilling this responsibility through
several diverse programs. Examples of these efforts
are significant reductions in salary personnel, sub-
stantial- capital expenditures to improve reliability
and reduce maintenance costs in both Ludox*
[Ludox is a registered trademark] and Contact, and
considerable time and effort in obtaining relaxation
of our S02- emission limits. These are all geared to
one objective-strengthening the competitiveness of
our plant, and thus enhancing job security for all of
us.
Another program that the union and management
have been bargaining for over-six months is produc-
tion job restructure. At the core of the proposal. is a
new way of working on the plant. We have pro-
posed combining and broadening the operating area
assignments to give greater flexibility and variety in
the jobs. I firmly believe the restructure is an im-
portant effort that will help in the quest to strength-
en our competitiveness. We hope to reach agree-
ment-at the-bargaining table, but because of the im-
portance of the program and the lack of progress to
date, we have given the union notice of our desire
to terminate the contract. There are some minor
sections in the contract that are in conflict with the
restructure proposal. "We have taken this step to
remove these contract constraints and give future
flexibility in the event an agreement cannot be
reached on job structure. -
I want to emphasize a critical point. Our sole
intent in terminating the contract is to enable pro-
ceeding with the new structure. There are no other
underlying reasons. We see no need--at the -present
time to change other terms and conditions of, the
current contract that do not - pertain to restructure.
If we operate long-term without a contract and it
becomes timely for management or the union to.
propose changes, these would be bargained at that
time . We do not plan any such changes now.
Likewise, contract termination is not a vehicle to
remove employee benefits, as has been openly spec-
ulated by some. Employee Benefit Plans are identi-
cal for Du Pont salary and - wage employees, and
these Plans are firmly and appropriately in place. It
is periodically necessary to modify the Plans, as we
have done in the past. A current example is
MEDCAP substitution for current medical insur-
ance coverage-an improvement unrelated to job
restructure. There is no intent to withdraw Benefit
Plans.
I appreciate this opportunity to-review the recent
events and our plans for the future. I hope to have
increased your understanding so you can participate
with knowledge and confidence when making deci-
sions in the coming weeks as may be necessary.
Feel free to speak to your supervisor should you
have any further questions - or concerns. Let's all
work together to improve productivity and make
the East Chicago Plant even more competitive.
Very truly yours,
E. I. DU PONT & CO 341
s/s D.V. Luebke
Plant Manager
B. Analysis and Conclusions
Notwithstanding the length and breadth of the Union's
original request (G.C. Exh. 6)• set forth above, all parties
agree that the-only information now in issue is contained
in the complaint (G.C. Exh. 4 (c), par . VII (b)):
[F]easibility studies , surveys of reports performed
internally or commissions to outside consultants re-
lating to Respondent's proposal to restructure unit
jobs; inter- and intra-records related to Respond-
ent's proposal to restructure unit jobs ; data on pro- -
duction costs on a per unit basis at the East Chica-
go plant, plus known comparative per unit costs at
other plants operated by both Respondent and Re-
spondent 's competitors; and income statements and
supporting schedules for the "last 3 full years"
showing Respondent's labor costs; supervisory and
other "non -labor" wages and benefits , management
salaries and benefits , selling expenses , general and
administrative expenses , and corporate 'overhead ex-
penses allocated to the East Chicago plant (plus a
description of the formula used in the allocation of
expenses).
I begin with a clear statement of Board law as stated
in Pfizer, Inc., 268 NLRB 916, 918 (1984):
An employer has a duty to provide upon request in-
formation relevant "to the union in carrying out its
statutory duties and responsibilities." NLRB v. Acme
Industrial Co., 385 U.S. at 437. Where the requested
information concerns wage rates, job descriptions,
and other information pertaining to employees
within the bargaining unit , this information ' is pre-
sumptively relevant. . . . [T]he standard for rel-
evancy is .. . a "liberal discovery-type standard."
An employer' must furnish information that is of
even probable or potential relevance to the union's
duties. a
Applying the above-stated principles of law to the in-
stant case , I find that the General Counsel has estab-
lished a prima facie case. That is, much of the requested
information concerns unit employees and is therefore
presumptively relevant. As to that portion of the request
relating to management salaries and benefits, comparative
per-unit costs at plants operated by Respondent's com-
petitors, and other nonunit information, I find that the
Union has met its burden to show some relevance.7 For
example, Respondent's pay policy was based on a survey
of its competitors. This provides a sufficient nexus be-
8 See also New York Times Co', 270 NLRB 1267, 1273 (1984); E. I du
Pont & Co., 271 NLRB 1153-55 (1984). The latter case involves the same
Respondent and a similar issue to that raised here Respondent was or-
dered to turn over the information to the Union.
' Leland Stanford Junior University, 262 NLRB 136 (1982), enfd. 715
F.d 473, 474 (9th Cir. 1983); Newspaper Guild Local 95 v NLRB, 548
F.2d 863, 868-869 (9th Ctr 1977).
tween Respondent 's own wages and those paid by com-
- petitors.8
, Respondent proposed to the Union that a job restruc-
turing plan be implemented . Nine positions in the unit
would be abolished . At the time the job restructure was
proposed , Respondent was obligated to bargain with the
Union and there is no claim in this case that except for
refusing to provide the necessary information, Respond-
ent otherwise refused to - bargain .- That the negotiations
were unsuccessful may well be attributed to Respond-
ent's failure to provide the requested information.9
Respondent attempts to rebut the clear relevancy of
the material requested , which relevancy is based either
on a legal presumption or the record evidence as noted
above, by contending that it never put its financial condi-
tion in issue and, therefore , it is not required to accede to
the Union 's request . I find the defense to be completely
without merit . I reject it on three separate grounds.
First , I agree with Charging Party (Br. 12) where it
contends that this purported defense is no more than "se-
mantic camouflage." Thus , by attempting to avoid any
linkage of the proposal at issue and the Company 's finan-
cial condition , Respondent has purported to immunize
itself from the requirements of the Act. As stated by the
trial examiner in Cincinnati Cordage & Paper Co., supra at
77:
The Company's argument that it was not pleading
inability to pay but only that it could not "stay
competitive" appears to me to be self-contradictory,
for if a wage increase would have that effect, it
would seem to follow that the Company was finan-
cially unable to grant it.
So, too, here, Respondent assumes that with nine fewer
positions, its production will remain constant or even in-
crease and it will become more competitive. That is, its
profits will increase. i 0 This is sufficient linkage to bring
Respondent's proposal within the, rule of Pfizer, Inc.,
quoted above. i i
The second grounds on which I must reject Respond-
ent's argument is that the legal theory is erroneous. In
Leland Stanford Junior University, supra at 145 fn. 13, the
administrative law judge noted that the Supreme Court
decision in NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956),
was "not limited to cases in which the company makes
an actual plea of poverty, but [applies] to other situations
in which the company possesses data 'relevant' to its bar-
gaining positions," citing NLRB v. Pacific Grinding
Wheel, 527 F.2d 1343, 1348 (9th Cir. 1978).12
8 General Electric Co., 184 NLRB 407 (1970), enfd 466 F 2d 1177 (6th
Cu. 1972)
' Cincinnati Cordage & Paper Co, 141 NLRB 72, 77 (1963).
10 While this is merely common sense since no employer would know-
ingly act to reduce its profits, Norman Bell admitted the obvious in his
testimony
11 Monarch Machine Tool Co, 227 NLRB 1265 (1977).
12 See also Conrock Co., 263 NLRB 1293 (1982), enfd 735 F 2d 1371
(9th Cir 1984). There,'the company attempted to defeat the union 's claim
to otherwise relevant information by offering to' agree at arbitration not
to raise a certain defense nor to make certain factual contentions In re-
jecting this tactic, the Board noted that "a union has the right and the
Continued
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The third ground for rejecting Respondent 's defense is
found in the record . Thus, assuming arguendo that the
law is as Respondent contends , I find sufficient evidence
to show that Respondent 's proposal was in fact based on
economic factors . I credit the testimony of witnesses Mi-
chael Shepp and Paul King , called by the Charging
'Party. The former testified to his recollection of the
safety meeting with Respondent 's labor pool , to which I
alluded above . Shepp recalled that Luebke explained the
job. restructure - proposal as a way of controlling costs.
Luebke also stated that the plan was vital to the longevi-
ty of the plant , implying that those laid off would be sac-
rificed for the benefit of all, those remaining. At one
point Luebke stated ,."I have to have restructure!"
This latter theme, sacrifice a few for the benefit of
many , was also described by King . King was particularly
concerned with this ramification because those to be laid
off would of course be the junior employees : In this case,
some or all of the junior employees were minorities, like
King . After listening to Luebke , at the meeting with
labor pool employees , King became convinced the job
restructure was economically ' necessary . Thus , according
to King , Luebke described the proposal as one to gain
control over the productivity and flexibility of personnel
for economic reasons . 19 Research reveals two cases simi-
lar to the present case in which the circuit courts have
enforced the Board 's orders for employers to turn' over
requested financial information . Both cases involved lay-
offs of employees for alleged economic reasons. 14
Respondent has cited a circuit court case of its own,
United Fire Proof Warehouse Co., v. NLRB,. 356 F.2d 494
(7th Cir. 1966), in support of its claim that mere asserted
helpfulness to a union ' is insufficient to transform an em-
ployer 's bargaining position . which is not grounded in fi-
nancial inability into one which triggers a duty to dis-
close financial information . (Br: 23 .) Not cited by Re-
spondent is the case of Empire Terminal Warehouse Co.,
151 NLRB 1359 ( 1965), enfd . in part sub nom: Teamsters
Local 745 v. NLRB, 355 F .2d 842 .(D.C. Cir. 1966).
Throughout negotiations in Empire Terminal,, the em-
ployer asserted it was in strong financial condition, but
was- simply unwilling to give wage increases. The Board
affirmed dismissal of that portion of 'the case. While the
former case denied enforcement of the Board 's Order
and is' not, therefore, binding on me'," 5' the latter case
responsibility to frame the issues and advance whatever contentions it be-
lieves may lead to the successful resolution of a grievance ." (263 NLRB
'at 1294 ) So, too, in the present case,'the Union has the right to the infor-
mation at issue to advance positions during bargaining Relevancy is not
defeated by Respondent 's claim that its proposal is not economically mo-
tivated.
'3 Respondent seems to recognize that the testimony of the two wit-
nesses has some probative value, but then attempts to discount the value
by claiming that the communications between Luebke and the employees
occurred outside negotiations (Br 35-37) That Respondent might take
one position in negotiations ,' claiming , no economic linkage, and a con-
trary position at meetings with unit employees makes Respondent 's entire
position suspect Indeed , Respondent 's attempt " to persuade employees of
its point of view included not"only meetings , but letters to employees as
well (G C Exh 6 ) Respondent was bypassing the Union and undermin-
ing its position by not releasing documents which might rebut some or all
of Respondent 's claims in its direct dealings with employees
i4 Florida Steel Corp v. NLRB, 601 F 2d 125 (4th Cir' 1979); NLRB v.
Production Molded Plastics, 604 F 2d 451, 452 (6th Cir. 1979).
i s Iowa Beef Packers, 144 NLRB 615 (1963)
does represent Board law. i 5• However, both cases can be
distinguished from the instant case. '. .
In the present case, I have found that Respondent's
proposal was economically motivated. My finding is
based not only on the two witnesses, Shepp and King,
but the record evidence considered as a whole and the
inferences naturally flowing therefrom. I would further
distinguish the cases 'by, noting . that refusing to give a
wage increase because it simply did not want to and re-,
structuring the jobs in a bargaining unit, causing up to
nine layoffs, are completely different. In the latter cases,
as I have "noted above, there is virtually a_ presumption of
economic,motive for which the.Company should be re-
quired to disclose the requested information. I have also
read and considered the case of Yore Cinema Corp., 254
NLRB 1288 (1981), also cited by Respondent,, and find
that it, too, may be factually distinguished. In that case,
respondent sought to eliminate a 5-hour shift guarantee
and coupled that position with an 'hourly wage increase.
The administrative law judge found that the direct moti-
vation to eliminate the guaranteed hours was to facilitate
elimination of the second showing of each film on week-
,day evenings. (The business in question was operation of
motion picture' theaters.)' The economic advantages to
the employer, if any, was incidental. .
The above cases and others cited by Respondent
should be compared to NLRB 'Vi. Western Wirebound Box
Co., 356 F2d 88 (9th Cir. 1966). This case' enforced a
Board Order in which an employer was directed to turn
over certain information requested by the Union. During
negotiations for a new contract, the employer asked the
union. to accept a wage reduction. When the Union re-
quested -certain financial records and information, the
Company refused to comply on the ground that it was
not asking for wage cuts for economic, reasons under
NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956). Rather, it
asked for wage cuts in order to maintain a competitive
position. In affirming the Board's Order, the court noted
that prior Board cases had confined the rule of Truitt
only to cases where the employer claimed inability to
pay. "However," the Court stated.. "the Board has a
right to change its view as. long as its new position is not
erroneous." (356_F.2d at 91.)17
ie It is doubtful that Empire Terminal represents current"Board think-
mg. Later cases seem to have broadened -the employer 's duty to disclose
information
17 Respondent contends ' that with respect to the nonfinancial data at
issue, the General Counsel has not proven the existence of•any materials
requested by the Union Tlus issue came up during the hearing
JUDGE STEVENSON In that respect on Mr Trigg, I don't under-
stand Mr. Hellman to be claiming that you should give the Union
something-you don't have or that was destroyed You are not claim-
ing that they should give him-something that they don't have, do
you? . , .
MR HELLMAN I don't see how we could be Our contention is
that there is financial data that does exist.
JUDGE STEVENSON Apparently at least some on the bassi of what
I heard so far. Some of the material ' no longer exists
MR. HELLMAN Well, that has been the contention, Your Honor
Obviously ,, we are in no position, ,when I say we the General Coun-
sel and I believe the,Umon , we are not in any position to either con-
firm or deny that . I 'suspect that is 'one of the big reasons why we
are here today.
As I noted at hearing , Respondent cannot provide what it never had or
no longer has. Any dispute in this area can be settled at compliance.-
E. I DU PONT & CO. 343
CONCLUSIONS OF,LAW
1. The Respondent, E. I. du Pont de Nemours & Com-
pany, is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union, Grasselli Employees Independent Asso-
ciation of East Chicago, Inc., is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent and the Union have been parties to a
series of collective-bargaining agreements (the one in-
volved here was effective from October 14, 1981,
through January 17, 1984) in which the -Union was rec-
ognized as the exclusive bargaining representative of em-
ployees in an appropriate unit described in article I of
that agreement.
4. By refusing to provide the Union with the following
information, Respondent has failed to bargain in good
faith with the Union in violation of Section 8(a)(5) and
(1) of the Act:
Feasibility studies, surveys, or reports performed in-
ternally or commissioned to outside consultants re-
lating to Respondent's proposal to restructure unit
jobs; inter- and intra-company memoranda, tele-
phone memoranda, reports , communications, notes
or records related to Respondent's proposal to re-
structure unit jobs; data on production costs on a
per unit basis at the East Chicago plant, plus known
comparative per unit costs at other plants operated
by both Respondent and Respondent's competitors;
and income statements and supporting schedules for
the "last 3 full years" showing Respondent's labor
costs, supervisory and other "non-labor" wages and
benefits, management salaries and benefits, selling
expenses, general and administrative expenses, and
corporate overhead expenses allocated to the East
Chicago plant (plus a description of the formula
used in the allocation of expenses).
5. The unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices affecting com-
merce, I shall recommend that it cease and desist there-
from and take certain affirmative action necessary to ef-
fectuate the purposes of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed18
ORDER
The Respondent, E.I. du Pont de Nemours & Compa-
ny, East Chicago, Indiana, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
18 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses i
(a) Refusing to bargain -collectively with Grasselli Em-
ployees Independent Association of East Chicago, Inc.
by refusing on request to supply relevant information
needed by the Union to represent the employees.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take- the following affirmative action necessary to
effectuate the policies of the Act.
(a) Furnish the Union, on request, with the following-
Feasibility studies, surveys, or reports performed in-
ternally or commissioned to outside consultants re-
lating to Respondent's proposal to restructure unit
jobs; inter- and intra-company memoranda, tele-
phone memoranda, reports, communications, notes
or records related to Respondent's proposal to re-
structure unit jobs; data on production costs on a
per-unit basis at the East Chicago plant, plus known
comparative per unit costs at other plants operated
by both Respondent and Respondent's competitors,
and income statements and supporting schedules for
the "last 3 full years" showing Respondent's labor
costs, supervisory and other "non-labor" wages and
benefits, management salaries and benefits, selling
expenses , general and administrative expenses, and
corporate overhead expenses allocated to the East
Chicago plant (plus a description of the formula
used in the allocation of expenses).
(b) Post at its plant in East Chicago, Indiana, copies of
the attached notice marked "Appendix."19 Copies of the
notice, on forms provided by the Regional Director for
Region 13, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.zo
19 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
20 At fn 5, p 38 of its brief, Respondent states that while it relied
solely upon the irrelevance of the financial information sought by the
Union when it refused to turn over the particular materials, it had not
abandoned a claim of confidentiality in the event disclosure is ordered
herein I note that no claim of confidentiality was litigated in this case
Accordingly , the case of General Dynamics Corp, 268 NLRB 1432
(1984), cited by Respondent , does not apply since there a confidentiality
was presented and litigated . Respondent may be able to raise this issue at
compliance Electrical Workers IUE v NLRB, 648 F 2d 18, 26 (D C Cir
1980) However, I offer no opinion in "The Remedy" or "Order" for
such procedure Finally, nothing in this footnote should be construed as
prohibiting the Union from bargaining with Respondent over how best to
protect Respondent's alleged trade secrets for the benefit of all parties
344
Existing
No Job Title
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
EAST CHICAGO
Job Restructure Proposal
Job
Level
CONTACT
4 Oper #1 13
1 Breaker 13
2 Oper Relief 11
4 Oper #2 11
4 Acid Loader 8
15
SILICA
PRODUCTS
5 Oper Env 12
Control
4 Oper Sil 11
Sol n
1 Oper Relief 11
(Sil )
4 Oper Ludox 1 11
2 Oper Relief 11
Ludox
8 Effluent Oper 10
Ludox
Proposed
No Job Title
I
Job
Level
12 Oper Contact 13
Existing
No Job Title
Job
Level
Proposed
No Job Title
Job
Level
6 T/C & Pkg 6 4 Mat I Handler 8
Hdlrs
30 27
AGCHEM/REAGENTS/SULFAMIC
(ARS)
4 Oper Sulfamic 12
1 Oper Relief 11
(Sulfamic)
3 Oper 11 12 Oper Ars 12
AGCHEM
1 Oper Relief 11
(AGCHEM)
3 Oper
Reagents
11
12
I
I Oper Relief 11
(Reagents)
2 Loader
ts)(R eneag
Oper 13 5 Blender/Pkr 7 8 Mat I Handler 8
Env Con /Sil (Sulfamic) 111
9 3 Pkr/Shipper 5
(AGCHEM)
14 Oper Ludox 12 23 20
68
1 Ludox is a registered trademark
59