Georgia Power Co.

National Labor Relations Board - Board Decisions

Jun 30, 2004

342 N.L.R.B. 192 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
342 NLRB No. 18
192
Georgia Power Company and International Brother-
hood of Electrical Workers, Local Union No. 84.
Case 10–CA–33361
June 30, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On September 12, 2002, Administrative Law Judge
Pargen Robertson issued the attached decision. The
General Counsel filed exceptions and a supporting brief,
and the Respondent filed an answering brief. The Re-
spondent filed exceptions and a supporting brief, the
Charging Party International Brotherhood of Electrical
Workers, Local Union No. 84 (the Union) filed an an-
swering brief, and the Respondent filed a reply brief.
The National Labor Relations Board has delegated 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 as
modified and to adopt the recommended Order as modi-
fied and set forth in full below.1
1. For the reasons set forth in his decision, we agree
with the judge’s dismissal of the complaint allegation
that the Respondent violated Section 8(a)(2) and (1) of
the Act by creating its Workplace Ethics program, and by
recognizing, supporting, and assisting it. A prerequisite
to finding such a violation is that the entity involved is a
“labor organization” as defined in Section 2(5) of the
Act. Crown Cork & Seal Co., 334 NLRB 699, 700
(2001). The record supports the judge’s key finding that
Workplace Ethics is not a labor organization under Sec-
tion 2(5) because it does not exist, even in part, for the
purpose of “dealing with” the Respondent. Id. Compare
Keeler Brass Co., 317 NLRB 1110, 1114 (1995) (“deal-
ing with” found because “grievance procedure func-
tioned as a bilateral mechanism, in which the Respondent
and the committee went back and forth explaining them-
selves until an acceptable result was achieved”).
2. The judge found, and we agree for the reasons set
forth in his decision, that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by making unilateral
changes in bargaining unit employees’ terms and condi-
tions of employment by implementing the Workplace
Ethics program, without providing the Union notice and
adequate opportunity to bargain.2 In addition, we agree

1 We have modified the judge’s recommended Order to conform to
the violations found, and have substituted a new notice that reflects
these changes.
2 Chairman Battista notes that the Respondent’s October 2001 invita-
tion to the Union to bargain over the Workplace Ethics program came
with the judge, as set forth in his decision, that the Re-
spondent bypassed the Union and dealt directly with bar-
gaining unit employees in violation of Section 8(a)(5)
and (1) of the Act by communicating directly to unit em-
ployees regarding the formation of Workplace Ethics by
its memorandum dated June 1, 2001. See Southern Cali-
fornia Gas Co., 316 NLRB 979, 982 (1995) (direct deal-
ing occurs when respondent communicates directly with
union-represented employees to the exclusion of the un-
ion, for the purpose of establishing or changing terms
and conditions of employment or undercutting the Un-
ion’s role in bargaining). We further agree with the
judge, as set forth in his decision, that the Respondent
engaged in direct dealing with the represented employees
in its creation of the five work teams, prior to the imple-
mentation of the Workplace Ethics program. The Re-
spondent solicited employee participation (including
employees represented by the Union) in forming these
work teams, and did not consult the Union in so doing.3
3. We reverse, however, for the reasons set forth be-
low, the judge’s finding that the Respondent bypassed
the Union and dealt directly with bargaining unit em-
ployees in violation of Section 8(a)(5) and (1) of the Act
by establishing a “Crew Leader Selection committee”
(CLSC) to review the selection process for crew leader
positions.
The record shows4 that the Respondent and the Union
have negotiated a memorandum of understanding for a
crew leader selection process. Some senior employees
complained to management when they were not selected
as crew leaders under that negotiated process. The Re-
spondent thereafter created an employee committee con-
cerning the crew leader selection process: the CLSC.
The Respondent sought employee volunteers to serve on

too late to relieve the Respondent of liability. Following its announce-
ment in June 2001 to the employees of the Workplace Ethics commit-
tee, the Respondent immediately began operating the program by proc-
essing employee concerns. Thus, by the time the Respondent offered to
bargain with the Union about the change, the program was already
operational.
3 Chairman Battista finds it unnecessary to decide whether there was
a direct dealing violation with respect to the Respondent’s June 1
memo, in which it informed the employees of the Workplace Ethics
program. The Respondent had met with and notified the Union of its
intention to implement the committee prior to sending this memo to the
employees. See Permanente Medical Group, Inc., 332 NLRB 1143,
1144 (2000) (finding no direct dealing where the employer kept the
union informed before and during the “design phase,” leading up to the
proposal for changes). An additional “direct dealing” violation would
not materially affect the remedy.
4 The Respondent argues in its exceptions that the record does not
support the judge’s finding that it impaneled an employee input com-
mittee in addition to the CLSC. We find merit in Respondent’s excep-
tion. In this section of our decision, we have summarized the record
facts pertaining to the CLSC issue.
GEORGIA POWER CO.

193
the CLSC. Unit employees served on the CLSC; a man-
agement official was also appointed; and an additional
management official supervised the CLSC process.
The Respondent advised the CLSC that they were not
to negotiate or to even get into the subject matter of ne-
gotiations. The Respondent’s manager of labor relations,
Henry Lightfoot, specifically assured Union Business
Manager Doyle Howard that the crew leader selection
process would not change without negotiations.
The CLSC only met twice. It then submitted a memo
to Respondent’s vice president, Mickey Brown, setting
forth “recommendations from committee to review Crew
Leader Selection Process.” The Respondent has made no
changes to the crew leader selection process.
An employer may lawfully consult with its own em-
ployees in formulating proposals for bargaining. Perma-
nente Medical Group, supra, 332 NLRB at 1144. The
Respondent’s establishment of the CLSC was a lawful
effort by the Respondent to formulate proposals regard-
ing the crew leader selection process.
In Permanente Medical Group, supra, the respondent,
a health care service provider, used employee volunteers
to provide input during the design phase of a program to
increase patient and family involvement in care and to
reorganize care management.5 The Board found no di-
rect dealing violation. The Board emphasized that the
respondent made it clear that the design phase in which
employees participated would yield only a proposal to be
presented to the unions for bargaining. The respondent
further “always made clear that its bargaining obligation
ran to the Unions.” 332 NLRB at 1145. It likewise told
the employee participants that they would not be engaged
in bargaining or setting any working conditions, and that
the design phase was not intended to be a substitute for
negotiations with the unions. The Board accordingly
concluded that the respondent “simply turned to its em-
ployees to assist it in formulating” its proposal to the
unions while concomitantly honoring its bargaining obli-
gation to the unions. Id.
Permanente Medical Group is dispositive of the in-
stant issue. There is no dispute that the Respondent here
made clear that it would honor its bargaining obligation
to the Union, and that the crew leader selection process
would change only via negotiations. Union Business
Manager Howard conceded at the hearing that the Re-
spondent’s manager of labor relations, Lightfoot, explic-
itly notified him that the Respondent was “not going to
change” the parties’ agreed-upon crew leader selection
process “without negotiating it.” Indeed, Lightfoot testi-

5 Several unions represented the employees involved in the design
phase.
fied that he advised Howard that if the Respondent
sought changes as a result of the CLSC, “I would contact
[Howard] and he could pick his committee, we would
pick ours, and we would negotiate [any] changes.”6 The
Respondent likewise cautioned the CLSC members that
they were not to engage in negotiations. The Respondent
here thus lawfully turned to its employees to assist it in
formulating proposals,7 while remaining vigilant in hon-
oring its obligation to bargain exclusively with the Un-
ion. We shall accordingly dismiss this complaint allega-
tion.8
Our dissenting colleague seeks to distinguish Perma-
nente on the ground that, in the instant case, Union Busi-
ness Manager Doyle sought to be on the committee, and
the Respondent denied the request. We believe that this
fact does not warrant a result contrary to Permanente.
The critical point is that the Respondent was developing
a management proposal to present to the Union. There
was no obligation to involve a union representative in the
formulation of a management proposal.
Moreover, our dissenting colleague relies on Central
Management Co., 314 NLRB 763 (1994), and Allied-
Signal, Inc., 307 NLRB 752 (1992), in support of his
assertion that the Respondent’s conduct was “likely to
erode the Union’s position as exclusive representative.”
As in U.S. Ecology Corp., 331 NLRB 223 (2000), these
cases are materially distinguishable from the facts before
us. While the employer in Central Management Co.
“offered more favorable terms to the employees on the
condition that they abandon the union . . . [n]o such quid
pro quo offer is alleged or evident here.” U.S. Ecology,
supra, 331 NLRB at 226-227 fn. 23 (emphasis in origi-
nal). In Allied-Signal, the employer unilaterally imple-
mented a smoking ban pursuant to the recommendations
of an employee task force, and the union was not aware
of the task force until the ban had been imposed. Here,
however, the Respondent made no changes to the crew
leader selection process, and it assured the Union that it
would not make changes without negotiating first.

6 The judge thus erred in finding that the evidence did not show that
preparation for negotiations was a reason underlying the CLSC. Our
dissenting colleague likewise errs in claiming that the Respondent
excluded the Union from the process; the Respondent rather specifi-
cally included the Union by its offer to bargain. Neither the dissent nor
the Union assert that this was not a bona fide offer.
7 See E. I. du Pont & Co., 311 NLRB 893, 894 (1993) (employer
may lawfully form an employee “brainstorming” group to develop a
“host of ideas” from which employer “may glean some ideas”).
8 The judge did not address the complaint allegation that the Re-
spondent violated Sec. 8(a)(5) and (1) of the Act by establishing CLSC
unilaterally and without notice to the Union. No party has filed excep-
tions on this issue.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

194
AMENDED CONCLUSION OF LAW
Substitute the following for Conclusion of Law 3 in
the judge’s decision.
“3. By making unilateral changes in bargaining unit
employees’ terms and conditions of employment by im-
plementing the Workplace Ethics program without pro-
viding the Union notice and adequate opportunity to bar-
gain, and by bypassing the Union and dealing directly
with bargaining unit employees, the Respondent has en-
gaged in conduct in violation of Section 8(a)(5) and (1)
of the Act.”
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Georgia Power Company, Atlanta, Georgia,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Making unilateral changes in bargaining unit em-
ployees’ terms and conditions of employment by imple-
menting the Workplace Ethics program without provid-
ing the Union notice and adequate opportunity to bar-
gain.
(b) Bypassing the Union and dealing directly with bar-
gaining unit employees.
(c) In any like or related manner interfering with, re-
straining, or coercing its 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) On request of the Union, cease using the Work-
place Ethics program regarding bargaining unit employ-
ees to the extent that the Workplace Ethics program in-
volves changes from the procedures existing under the
Respondent’s prior programs.
(b) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
employees in the bargaining unit as described in the par-
ties’ memorandum of understanding effective from July
1, 1999, to June 30, 2002.
(c) Within 14 days after service by the Region, post at
its Atlanta, Georgia facility and other facilities at which
unit employees are regularly employed, copies of the
attached notice marked “Appendix.”9 Copies of the no-

9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
tice, on forms provided by the Regional Director for Re-
gion 10, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained 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. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facili-
ties involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current and former employees employed by the
Respondent at any time since June 1, 2001.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

MEMBER WALSH, dissenting in part.
I dissent from the majority’s unwarranted reversal of
the judge’s finding that the Respondent bypassed the
Union and dealt directly with bargaining unit employees
in violation of Section 8(a)(5) and (1) of the Act by es-
tablishing a “Crew Leader Selection committee” to re-
view the selection process for bargaining unit crew
leader positions.1
It is well settled that the Act requires an employer to
meet and bargain exclusively with the bargaining repre-
sentative of its employees. An employer who deals di-
rectly with its unionized employees or with any represen-
tative other than the designated bargaining agent regard-
ing terms and conditions of employment violates Section
8(a)(5) and (1). Armored Transport, Inc., 339 NLRB
374, 376 (2003); Medo Photo Supply Corp. v. NLRB, 321
U.S. 678, 683–684 (1944). The Respondent’s total ex-
clusion of the Union from the Crew Leader Selection
committee process (CLSC) contravened these established
principles.
There is no dispute that the Respondent and the Union
negotiated a process for the selection of crew leaders,
and embodied their agreement in a memorandum of un-
derstanding. By virtue of the Union’s status as exclu-
sive-bargaining representative, the Respondent was obli-
gated to deal only with the Union with respect to this
subject. However, when some employees expressed to
the Respondent their concerns about the negotiated crew
leader selection process, the Respondent instead met di-
rectly with them. Thereafter, without even notifying the
Union, the Respondent created an employee committee

1 In all other respects, I agree with the majority opinion.
GEORGIA POWER CO.

195
to review the selection process (the CLSC), sought em-
ployee volunteers to serve on the CLSC, met with the
employees serving on the CLSC, and solicited their
comments on a draft memorandum proposing eight
changes to the negotiated procedure. The Respondent
flatly barred the Union from any participation in the
CLSC whatsoever.
These facts are materially distinguishable from those
of Permanente Medical Group, 332 NLRB 1143 (2000),
relied on by the majority. The respondent there informed
the unions at the outset of its plans for its health care
initiative, and union representatives were invited to and
did participate in the process. Here, by contrast, the Re-
spondent at all material times excluded the Union from
the CLSC, even after union Business Manager Doyle
Howard learned about it and sought to participate.2
Howard telephoned the Respondent’s manager of labor
relations, Henry Lightfoot, objected to the CLSC because
it was dealing with the parties’ negotiated agreement,
and alternatively sought union participation in the proc-
ess by helping select unit employees for the CLSC. The
Respondent rebuffed Howard’s entreaty. The Respon-
dent’s direct communication with unit employees, to the
exclusion of the Union, strongly supports a finding of
unlawful direct dealing. Southern California Gas Co.,
316 NLRB 979, 982 (1995). As stated by the Second
Circuit Court of Appeals in NLRB v. General Electric
Co.,3 direct dealing will be found when the employer has
chosen “to deal with the Union through the employees,
rather than with the employees through the Union.” This
is precisely what the Respondent did.
The majority errs in finding that the Respondent’s di-
rect dealing was ameliorated because it stated that it
would not bargain with unit members serving on the
CLSC, or that it would at some subsequent unspecified
time bargain with the Union. In order to find direct deal-
ing, “[i]t is not necessary that the employer actually bar-
gain with the employees. The question turns on whether
the employer’s direct solicitation of employee sentiment
over working conditions is likely to erode the union’s
position as exclusive representative.” Central Manage-
ment Co., 314 NLRB 763, 767 (1994). There is no dis-
pute that crew leader positions are highly sought after by
employees, and that the selection process is of particular
significance to them. The evidence fully supports the
judge’s key finding that the Respondent’s direct dealing
with employees, concerning the coveted crew leader po-

2 A union member, who had been solicited by the Respondent to
serve on the CLSC, advised Howard of its existence.
3 418 F.2d 736, 759 (2d Cir. 1969), cert. denied 397 U.S. 965 (1970).
Accord: Armored Transport, Inc., supra..

sitions and changes to a procedure it negotiated with the
Union, was likely to erode the Union’s position as exclu-
sive representative. Allied-Signal, Inc., 307 NLRB 752,
753–754 (1992). The Respondent’s conduct necessarily
undermines the collective-bargaining process and the
principle of exclusive representation on which it de-
pends.
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT make unilateral changes in bargaining
unit employees’ terms and conditions of employment by
implementing the Workplace Ethics program without
providing International Brotherhood of Electrical Work-
ers, Local Union No. 84 notice and adequate opportunity
to bargain.
WE WILL NOT bypass the Union and deal directly with
bargaining unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL, on request of the Union, cease using the
Workplace Ethics program regarding bargaining unit
employees to the extent that the Workplace Ethics pro-
gram involves changes from the procedures existing un-
der the Respondent’s prior programs.
WE WILL, before implementing any changes in your
wages, hours, or other terms and conditions of employ-
ment, notify and, on request, bargain with the Union as
the exclusive collective-bargaining representative of our
employees in the bargaining unit as described in the
memorandum of understanding effective from July 1,
1999, to June 30, 2002.

GEORGIA POWER COMPANY

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

196
Lisa Y. Henderson, Esq. for the General Counsel.
Laura H. Kriteman, Esq. and Fred Dawkins, Esq. for the Re-
spondent.
J. Michael Walls, Esq., for the Charging Party.
DECISION
PARGEN ROBERTSON, Administrative Law Judge. This hear-
ing was on May 13, 2002 in Atlanta, Georgia. I have consid-
ered the full record in reaching this decision, including de-
meanor of the witnesses and briefs filed by counsel for the gen-
eral counsel, Respondent, and the Charging Party.
Jurisdiction
Respondent is a Georgia corporation with an office and place
of business in Atlanta, Georgia. It is engaged in the business of
generating and distributing power utility services. During the
preceding 12-month period, a representative period, it received
revenues in excess of $250,000 from providing electrical power
services to enterprises in Georgia; which enterprises, in turn,
during the same period, purchased and received goods valued
in excess of $50,000 from suppliers located outside Georgia.
Respondent admitted that at all times material, it has been an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the National Labor Relations Act (the Act).
Labor Organizations
Respondent admitted that International Brotherhood of Elec-
trical Workers Local 84 is a labor organization within the
meaning of Section 2(5) of the Act and that it and the Union
have been parties to several collective bargaining agreements
with the most recent being effective July 1, 1999, to June 30,
2002. The Union represents the employees covered by those
collective-bargaining agreements.
The Unfair Labor Practice Allegations
General Counsel alleged that Respondent engaged in conduct
in violation of Section 8(a)(1), (2) and (5). The alleged 8(a)(2)
conduct included creating a labor organization; and recognizing
and rendering assistance and support to that labor organization.
Respondent allegedly violated Section 8(a)(5) by unilaterally
and through direct dealing with employees, implementing a
grievance procedure that included employee representatives
and by establishing a committee to review the selection process
for bargaining unit crew leader positions.

The Record Evidence
Created Workplace Ethics?
Recognized and helped Workplace Ethics?

Employees including those within and outside the bargaining
unit, were notified of Respondent’s implementation of Work-
place Ethics, by memorandum dated June 1, 2001 (GC Exh.
22):

The following announcement is being sent to all Georgia
Power employees on behalf of President and CEO David
Ratcliffe:

Today I am announcing the formation of a new Workplace
Ethics department. The new group combines the roles of Cor-
porate Concerns and parts of the Southern Company Services
EEO function.
This department will report to Frank McCloskey, currently
vice president of Diversity Action. Frank’s organization will
now be called Diversity and Workplace Ethics. A new Work-
place Ethics manager position will be posted internally and
externally in the coming days. This manager will report to
Frank.

It is critical to our company that we do the best job possible in
welcoming and resolving employee concerns. Our current
method of handling employee complaints has been in place
for more than a decade. During that time new approaches
have been developed by other companies that we feel will
improve our program. Our new approach will emphasize pro-
active communication and use of concerns as key source for
surfacing issues.

I would be remiss if I did not take this opportunity to thank
both Lee Glenn and Herman Pennamon, who have been run-
ning our Corporate Concerns and EEO processes. They have
both done an excellent job in handling many employee issues
with professionalism and integrity. Our desire to change these
programs in no way reflects on the fine job they have both
done.

The new process for resolving employee concerns will differ
from the previous ones in several ways. Among them:

When Workplace Ethics staff members, who will be called
employee advocates, are unable to resolve a concern through
functional management, the employee will be able to take his
case to an in-house ombudsman, Frank McCloskey. Frank
will have authority to make final decisions on workplace eth-
ics issues, accountable only to me.

Employees will be able to report concerns using a toll-free
number staffed by an outside firm.

A peer review process is currently being designed. In this ap-
proach to dispute resolution, trained volunteer employees will
review concerns and make binding decisions. The process
will be implemented in phases, beginning with customer op-
erations.

Concerns about discrimination or harassment will go to
Workplace Ethics, rather than EEO. EEO will now focus on
Affirmative Action planning and monitoring, while handling
inquires from the EEOC and the Georgia Department of La-
bor for Georgia Power.

You’ll be hearing more about the peer review process later
this summer, when its design is complete. This is a “best prac-
tices” approach that has been used successfully at other com-
panies to improve trust and openness in the concerns process.1

1 As shown below, the Respondent actually implemented a Work-
place Ethics practice that differed from the one outlined above. Bentina
Chisolm testified that Workplace Ethics followed the procedure shown
in R. Exh 2. An employee would first contact an outside organization
through a toll free call and meet with an employee of Respondent
(workplace ethics coordinator). The workplace ethics coordinator
would investigate the employee concerns and attempt to resolve any
differences with management. If the employee was dissatisfied with the
results following the coordinator’s decision, he or she could appeal to
GEORGIA POWER CO.

197

The parties stipulated that Respondent placed employees, in-
cluding bargaining unit employees, on its ethics employee re-
view panels and that it compensated all employees, supervisors,
and managers for time served on the ethics review panels.
Union Business Agent Doyle Howard testified that Respon-
dent first advised him about its Workplace Ethics during a July
17, 2001 meeting. Howard was told that Respondent formerly
had two programs. One was EEO and the other Corporate Con-
cern. Those two programs were being combined into one pro-
gram that would be called Workplace Ethics.
In the fall of 2001, the Union and the Respondent met re-
garding Workplace Ethics. Bentina Chisolm explained the pro-
gram for Respondent. Her presentation included a slide presen-
tation and a full explanation of the program. Chisolm answered
questions as she made her presentation. The Union was given
an outline, which was similar to the slide presentation. At one
point during Chisolm’s presentation Doyle Howard objected to
inclusion of bargaining unit employees in the Workplace Ethics
program on the grounds that the Union was the unit employees’
sole representative and the collective-bargaining agreement
included a grievance procedure.
Since implementing the Workplace Ethics program, Respon-
dent has not advised the Union whenever it received a griev-
ance from a bargaining unit employee and the Union has not
been afforded opportunities to represent unit employees during
Workplace Ethics grievances.
Andrea Jackson testified that she was a meter reader.2 Jack-
son received disciplinary action in September 2001. She was
placed on decisionmaking leave for not reporting an accident.
Jackson contacted Walter Dukes who is Respondent’s manager
over distribution. Dukes advised her to contact her shop stew-
ard and Dukes gave her some information on Workplace Eth-
ics. Dukes told Jackson that she should contact Jo Molock.
Jackson filed a grievance under the parties’ collective-
bargaining agreement.3 After completing the first step of the
grievance, Jackson contacted Bentina Chisolm in Workplace
Ethics. Jackson questioned Chisolm as to whether she should
be talking with Workplace Ethics in view of the Union’s law-
suit claiming Workplace Ethics was unlawful. Chisolm told her
that Workplace Ethics was not trying to do away with the Un-
ion and that Workplace Ethics was set up to represent the em-
ployees and conduct investigations. Bentina Chisolm said that
Jackson could continue her case with the Union at the conclu-
sion of the Workplace Ethics process. In November Bentina
Chisolm phoned Jackson and said that she had made her deci-
sion and that she was ruling in Jackson’s favor. However, Jack-
son later learned that reference to the alleged accident was not
removed from her personnel file. Jackson contacted Bentina
Chisolm again in January. After an investigation Chisolm told
Jackson that she would continue to be charged with the acci-
dent, which had given rise to her disciplinary action. Jackson

either an “Employee Review” panel or to a company officer. The deci-
sion of the review panel or company officer would be final.
2 Meter reader is a bargaining unit position.
3 The parties collective-bargaining agreement is entitled “Memoran-
dum of Agreement” and is sometimes referred to as MOA.
filed a second grievance with the Union. Before the grievance
was resolved Jackson was terminated on other grounds.
Respondent called Howard Winkler who was formerly its la-
bor relations coordinator.4 Winkler testified that before forma-
tion of Workplace Ethics, employees submitted concerns and
discrimination claims to either Corporate Concerns or EEO.
Both unit and nonunit employees used those programs. Corpo-
rate Concerns investigated a broad array of employee com-
plaints including concerns about discipline or termination and
general issues of unfairness. EEO focused on charges of illegal
discrimination.
Respondent’s CEO set up five work teams5 of employees to
investigate general areas of concern to employees during July
2000. Those work teams made recommendations, which were
eventually reduced to some 33 projects, including the review
and improvement of Corporate Concerns and EEO. Winkler
was involved in researching ways to improve Respondent’s
programs. Among other things he considered how implementa-
tion of the various alternatives would impact on its collective-
bargaining agreement. Ultimately Respondent changed to the
Workplace Ethics program after it became convinced that pro-
gram would not impact on its collective-bargaining agreement
to any greater extent than had its previous Corporate Concerns
and EEO programs.
Bentina Chisolm started working for Respondent on August 1,
2001, as manager of Workplace Ethics. Her understanding was
that Workplace Ethics could address any issues filed by employ-
ees except issues covered by the memorandum of agreement6
with the Union. Chisolm made a presentation to the Union as
well as to employees both within and outside the bargaining unit,
regarding Workplace Ethics and she supplied the Union with a
memorandum outlining that presentation (R. Exh. 1):

As you are aware the enhanced Workplace Ethics process is
available to bargaining unit employees. The purpose of this
memorandum is to explain how Workplace Ethics and Labor
Relations will manage cases brought by bargaining unit em-
ployees. If you have any questions please feel free to contact
either Labor Relations or Workplace Ethics.

Workplace Ethics will notify Labor Relations of all
Workplace Ethics cases/concerns involving covered
employees.

If a covered-employee concern has been filed involv-
ing an issue covered by the memorandum of agree-
ment (MOA), the employee will be advised that con-
tractual issues should be addressed through the bar-
gaining unit and Labor Relations following the provi-
sions of the MOA.

4 From 1991 through 1995 Winkler worked in Respondent’s human
resources department. He had some dealings with Corporate Concerns
and EEO during that period. Winkler is currently Respondent’s human
resources strategy director.
5 Howard testified that the work teams included bargaining unit em-
ployees.
6 The parties’ collective-bargaining agreement is entitled “Memo-
randum of Agreement.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

198
If a covered-employee concern involves a Discharge,
Demotion or Discipline for violation of a provision of
the MOA, Workplace Ethics and Labor Relations will
make a cases by case determination as to whether the
employee is eligible for the Workplace Ethics process.
The employee will be notified of this determination.
The provisions of paragraph 63 of the MOU that re-
quire covered employees to file certain grievances
within 20 days will not be extended.

If a covered-employee concern has been filed with
Workplace Ethics involving a Discharge, Demotion or
Discipline, and a grievance has also been filed related
to the same concern, the responsible manager will be
notified. The manager may choose not to rule on the
grievance while Workplace Ethics investigates the
concern. However, management should not be hesitant
in making timely, sound decisions during the griev-
ance process. Labor Relations does have a responsibil-
ity to ensure that grievances are resolved promptly.

If the Workplace Ethics Coordinator recommends a
change to the supervisor’s original action regarding a
covered employee, the supervisor or the manager who
has heard the grievance may choose at any time to fol-
low the recommendation.

Prior to arbitration certification, if the Employee Re-
view Panel of Review Officer rules regarding a cov-
ered employee, that ruling becomes the decision of the
Company, and the grievance decision will be amended
if a change needs to be made.

If the Union certifies a grievance for arbitration, Work-
place Ethics will no longer handle the case/concern.
The arbitration award will be the final decision of the
case/concern regardless of the Workplace Ethics rec-
ommendation, the Employee Review Panel decision or
the Review Office decision.

Respondent Manager of Labor Relations Henry Lightfoot
first notified the Union about its change to the Workplace Eth-
ics program at a meeting on May 30, 2001. At that time M.O.
Wallace was the union business agent. A few days after the
meeting, Wallace contacted Lightfoot and said the Union could
not support the Workplace Ethics process. The next meeting
Lightfoot held with the Union was delayed until July 17 when
he met with Doyle Howard.7 Lightfoot advised Howard of the
planned Workplace Ethics program and, on October 10, Re-
spondent through Bentina Chisolm made a Workplace Ethics
presentation to the Union. Shortly after the October 10 meeting,
Howard phoned Lightfoot that he had problems with Work-
place Ethics and wanted to know if the parties could work any-
thing out. Subsequently, Lightfoot told Howard that unless he
had something specific to propose, Respondent would go ahead

7 After the May 30, 2001 meeting M.O. Wallace advised Lightfoot
that he was not seeking reelection and that issues including Workplace
Ethics would be delayed until the new administration came in.
Lightfoot recalled that Doyle Howard replaced Wallace on July 13,
2001.
with Workplace Ethics. Lightfoot testified that it is his opinion
that Respondent had a right to implement Workplace Ethics
under the management rights clause of the memorandum of
agreement.8
Established a Committee Reselection of Crew Leaders?
Business Agent Doyle Howard testified without dispute, that
the Union and Respondent have agreed to a crew leader selec-
tion process. However, in late October 2001 a member of the
bargaining unit told Howard that he was on a committee
formed by Respondent that was considering how to improve the
crew leader selection process. Howard objected but Respondent
replied the committees would not talk about any negotiated part
of the crew leader selection process.
Respondent Manager of Labor Relations Henry Lightfoot
testified that some senior employees complained when they
were not selected as crew leaders under the process negotiated
with the Union. Instead, a junior employee had been selected.
The employees complained that the crew leader selection proc-
ess was unfair. Management met with those complaining em-
ployees and then asked Lightfoot if it could legally put together
a focus group or committee to seek input from employees. Sub-
sequently, Union Business Agent Doyle Howard phoned
Lightfoot and inquired about the input committee. Howard
complained that he should be on the committee and Lightfoot
disagreed. Lightfoot testified that no changes have been made
in the negotiated crew leader selection process.
Findings
Credibility
The record showed there were no material credibility con-
flicts. Minor conflicts including whether Doyle Howard ob-
jected to the Workplace Ethics program during a presentation
by Bentina Chisolm, are insignificant in view of the fact that
both witnesses for the the General Counsel and Respondent
testified that the Union did object to Workplace Ethics on more
than one occasion.
Findings of Fact
Created, Recognized and Helped Workplace Ethics?
Respondent implemented Workplace Ethics in 2001. Before
that Respondent had two programs, (i.e., Equal Employment
Opportunity and Corporate Concerns). Respondent showed
among other things, a July 2000 “Diversity Initiative” illus-
trated to it that employees viewed the EEO and Corporate Con-
cerns programs as deficient in a number of areas. Respondent
combined the EEO and Corporate Concerns programs into the
Workplace Ethics program. The Workplace Ethics program as
well as the EEO and Corporate Concerns programs before it
included both employees represented by the Union and em-
ployees that were not represented by the Union.
Respondent first notified the Union of its Workplace Ethics
program on May 30, 2001. Subsequently, the Union’s new
business agent was told of Workplace Ethics on July 17, 2001.

8 The parties’ memorandum of agreement includes a management
clause in art. III. However, there is nothing in that provision which
purports to give management the right to establish Workplace Ethics.
GEORGIA POWER CO.

199
A formal presentation outlining the Workplace Ethics program
was made to the union executive board on October 10, 2001.
Under Workplace Ethics, an action is initiated when an em-
ployee files a concern. A Workplace Ethics coordinator investi-
gates the concern “by talking to all involved parties and view-
ing all relevant documents.” The Workplace Ethics coordinator
then “meets with the concerned individual and management
separately to convey the results of the investigation.” Respon-
dent may follow or ignore the coordinator’s recommendation.
The concerned individual may appeal an unfavorable outcome
of the coordinator investigation to the employee review panel
or to a review officer. The panel or officer may hear witnesses
and review documents and then either grant, modify or deny the
employee’s concern. That decision, whether from the Employee
review panel or a review office, is binding on Respondent.
Employees in the bargaining unit may pursue a concern or a
grievance separately, or simultaneously pursue a grievance
under the memorandum of agreement and a concern through
Workplace Ethics. Workplace Ethics proceedings are automati-
cally terminated if a grievance filed under the parties’ collec-
tive-bargaining agreement on the same issue is certified for
arbitration.
Former bargaining unit employee Andre Jackson filed a
grievance and a concern with Workplace Ethics. She had been
disciplined for failing to report an accident in a company vehi-
cle. Jackson first filed a grievance under the MOA. Afterward
she filed a concern with Workplace Ethics. The Workplace
Ethics investigator, Bentina Chisolm, determined that the disci-
plinary action was not warranted. At that time Jackson did not
pursue her grievance but, on subsequently discovering she was
still charged with the accident,9 Jackson filed a second griev-
ance. Jackson was terminated on nonrelated grounds 2 days
after she filed her second grievance and that grievance was
never processed.
Established a Committee re Selection of Crew Leaders?
In the fall of 2001 Respondent impaneled an employee
committee to provide input regarding its crew leader selection
process.
Respondent informed the crew leader selection committee10 of
the results of the employee committee meeting. The Union ob-
jected to examination of the crew leader selection process. Re-
spondent replied that the crew leader selection committee would
not change the crew leader selection process without negotia-
tions. After two meetings, the crew leader selection committee
submitted a memorandum to Respondent’s senior vice president
of distribution, which included several recommendations on how
to improve the crew leader selection process.

9 Jackson’s record showed that she was charged with an accident
even though her disciplinary action from that alleged accident, was
removed from her file.
10 The crew leader selection committee included three bargaining
unit employees among its six members.
Findings of Law
Workplace Ethics
Section 8(a)(1) and (2)
In this alleged violation of Section 8(a)(2), my initial inquiry
must concern whether Workplace Ethics constitutes a labor
organization. If Workplace Ethics were a labor organization, it
would be an unfair labor practice under Section 8(a)(2) for
Respondent to dominate or interfere with the formation or ad-
ministration of, or to contribute financial or other support to,
Workplace Ethics.

Under the statutory definition set forth in Section 2(5),
the organization at issue is a labor organization if (1) em-
ployees participate, (2) the organization exists, at least in
part, for the purpose of “dealing with” employers, and (3)
these dealings concern “conditions of work” or concern
other statutory subjects, such as grievances, labor disputes,
wages, rates of pay, or hours of employment.

. . . .

Notwithstanding that “dealing with” is broadly defined
under Cabot Carbon, it is also true that an organization
whose purpose is limited to performing essentially a
managerial or adjudicative function is not a labor organi-
zation under Section 2(5). In those circumstances, it is ir-
relevant if the impetus behind the organization’s creation
emanates from the employer. See General Foods Corp.,
231 NLRB 1232 (1977) (employer created job enrichment
program composed of work crews of entire employee
complement); Mercy-Memorial Hospital, 231 NLRB 1108
(1977) (committee decided validity of employees’ com-
plaints and did not discuss or deal with employer concern-
ing the complaints); John Ascuaga’s Nuggett, 230 NLRB
275, 276 (1977) (employees’ organization resolved em-
ployees’ grievances and did not interact with manage-
ment). Electromation, Inc., 309 NLRB 990 (1992).

Respondent does not dispute (1) that employees including
bargaining unit employees, participated in Workplace Ethics
employee review panels and (2) that Workplace Ethics panels
dealt with employee concerns not otherwise controlled by the
memorandum of agreement. Respondent does dispute that
Workplace Ethics panels dealt with management regarding
terms and conditions of employment (Crown Cork & Seal, 334
NLRB 699 (2001)).
In Crown Cork & Seal, there was no union organizational ac-
tivity when a system of employee committees was formed and
there was no union organizational activity at any time material
to the alleged unfair labor practices.
There were a total of seven Crown Cork & Seal committees.
Four of the committees dealt with workplace issues including
production, quality, training, attendance, safety, maintenance,
and discipline short of suspension or discharge. The three re-
maining teams existed one administrative level above the four
production teams. Those three teams included the organiza-
tional review board, the advancement certification board, and
the safety committee. The organizational review board moni-
tored plant policies to insure uniform administration among the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

200
four production committees. The organizational review board
also suggested modifications to plant norms including hours,
layoff procedures, smoking policies, vacations and all terms
and conditions of employment, and it reviewed production team
recommendations to suspend or discipline a team member. The
advancement certification board was authorized to administer
the “Pay for Acquired Skill program.” It certified that employ-
ees had advanced to higher skill levels and recommended pay
increases to the plant manager. The safety committee was au-
thorized to review production team accident reports and it con-
sidered the best methods to ensure a safe workplace.
Above those three teams was a 15-member management
team and, ultimately, the plant manager. The plant manager had
ultimate authority to review all decisions made by the commit-
tees. The decisions and recommendations of the three commit-
tees (i.e., organizational review board, the advancement certifi-
cation board, and the safety committee) were given great
weight and rarely overruled. The NLRB found no unfair labor
practice in holding that the seven Crown Cork & Seal commit-
tees did not “deal with” management within the meaning of
Section 2(5). Instead the Board found that the committees were
management within the scope of their delegated spheres of
authority. In so holding the Board found that the Crown Cork &
Seal committees exercised managerial authority at each level.
The four production committees exercised authority compara-
ble to a front-line supervisor and the three higher-level commit-
tees exercised authority that would be clearly supervisory, in a
traditional plant setting.
I am convinced that application of the Crown Cork & Seal
standards, illustrates that Respondent did not engage in 8(a)(2)
violations with its Workplace Ethics program. As in Crown
Cork & Seal, the Workplace Ethics process resulted in man-
agement level decisions at the end of each procedure. Only in
the step 1 procedure was there anything approaching “dealing
with” management. There the Workplace Ethics coordinator
was charged with trying to resolve concerns by talking with
management and the employee. However, that does not consti-
tute dealing with management under Crown Cork & Seal.
There is no mechanism in Workplace Ethics, which involves a
pattern, or practice in which the Workplace Ethics panels make
proposals to Respondent and Respondent responds to those
proposals in word or deed. I find that the General Counsel
failed to prove that Workplace Ethics panels constitute a labor
organization and failed to prove that Respondent engaged in a
violation of Section 8(a)(1) and (2).
Section 8(a)(1) and (5)
The question here is whether Respondent had an obligation
to bargain with the Union regarding Workplace Ethics. As
shown above, no union was involved and, of course, there was
no obligation to bargain, in Crown Cork & Seal. Although that
decision was relevant to consideration of the 8(a)(2) allega-
tions, it is not relevant to a consideration of Section 8(a)(5).
Here, Respondent had an obligation to bargain with a union
regarding working conditions of unit employees.
The Union and the General Counsel argued that the Respon-
dent had an obligation to bargain before making unilateral
changes in working conditions and an obligation to avoid deal-
ing directly with bargaining unit employees. Respondent ar-
gued that it made no changes. Instead it simply consolidated
two programs into one, by uniting Corporate Concerns and
EEO. Respondent argued that it had no obligation to bargain
because Workplace Ethics involved a purely managerial func-
tion.
As to the argument that Respondent was obligated to bargain
before making unilateral changes, Respondent first notified the
Union of its plan to implement Workplace Ethics on May 30,
2001. However, the evidence shows without dispute that Re-
spondent did not afford the Union an opportunity to bargain
before it implemented Workplace Ethics.11
However, the record shows that Respondent did change its
grievance procedure by implementing Workplace Ethics. For
example, internal memoranda show that Respondent formerly
advised unit employees to exercise their grievance rights under
the collective-bargaining agreement before coming to Corpo-
rate Concerns (GC Exh. 14).12 After Workplace Ethics was
implemented, unit employees including Andrea Jackson, were
told they could pursue concerns under Workplace Ethics simul-
taneously from or separately with, collective-bargaining griev-
ances. Another example of unilateral change is reflected on
page 2 of General Counsel’s Exhibit. 14. There two internal
memoranda discuss whether to include unit employees on a
Workplace Ethics employee panel if the respective employee
expressed an obligation to vote for a fellow union member.
Another example is shown in Bentina Chisolm’s October 2001
Workplace Ethics report to the Union. There, among other
things, Chisolm stated that if a unit employee had a pending
concern with Workplace Ethics and a grievance was filed under
the memorandum of agreement, the responsible manager could
elect not to rule on the grievance while Workplace Ethics in-
vestigates the concern. Those examples illustrate that the im-
plementation of Workplace Ethics generated new issues and
Respondent resolved those issues unilaterally. Moreover, Re-
spondent ignored the Union and dealt directly with employees
including bargaining unit employees. The employees were
independently notified of its Workplace Ethics program and
both unit and nonunit employees were included on committees
involved in creation and maintenance of Workplace Ethics.
The evidence does not support Respondent’s argument that
Workplace Ethics is a purely managerial decision making vehi-
cle. Instead Workplace Ethics is a grievance procedure vehicle
designed to provide employees with a different procedure for

11 See for example, the testimony of Respondent Manager of Labor
Relations, Henry Lightfoot, where he testified the Union objected to
Workplace Ethics shortly after May 30, 2001, but Respondent contin-
ued to develop Workplace Ethics. Lightfoot went on to testify that
shortly after the October presentation to the Union, the Union objected
to the program and wanted to know if the parties could work anything
out. The Union was told that Respondent would go ahead with Work-
place Ethics unless the Union had something specific to propose.
12 Two viewpoints are reflected in the memoranda shown on p. 1 of
GC Exh. 14, regarding how concerns were formerly handled under
Corporate Concerns. Nevertheless both memos make it apparent that
changes were made when Respondent advised unit employees under
Workplace Ethics that concerns could be filed separately or simultane-
ously with grievances.
GEORGIA POWER CO.

201
resolving distasteful managerial decisions without resort to the
Union.
It is well established that the subject of grievances is a man-
datory subject of collective bargaining. Hughes Tools Co. v.
NLRB, 147 F.2d 69 (5th Cir. 1945); Indiana & Michigan Elec-
tric Co., 284 NLRB 53 (1987).
Respondent also argued that Respondent does not deal di-
rectly with employees during the Workplace Ethics procedure.
However, the record evidence shows that Respondent first dealt
directly with employees regarding its establishment of Work-
place Ethics. For example on June 1, 2001, Respondent advised
both unit and nonunit employees of the formation of Workplace
Ethics. In its June 1 memo, Respondent informed the employ-
ees among other things, that it would use new approaches for
resolving employee concerns and it listed some specific exam-
ples of how it would employ new approaches. Moreover, as
shown in the testimony of Howard Winkler, Respondent has
dealt directly with employees set up in five work teams toward
what eventually became Workplace Ethics. Allied-Signal, Inc.,
307 NLRB 752 (1992).
I am convinced that Respondent implemented a new griev-
ance procedure called Workplace Ethics without bargaining
with the Union and it dealt directly with employees in develop-
ing and maintaining Workplace Ethics, in violation of Section
8(a)(1) and (5).
Established a Committee Regarding Selection of
Crew Leaders?
Respondent argued that its employee committee was nothing
more than a brainstorming committee and there was no direct
dealing with employees on that committee. However, I must
keep in mind that Respondent admittedly formed that commit-
tee for the specific purpose of considering the unfairness of the
crew leader selection process and the crew leader selection
process had been formed through negotiations with the Union.
Respondent also argued that it assured the Union that the crew
leader selection process would not change without negotiations.
Respondent’s argument is specious. An employer may not
escape accountability by simply telling the Union it does not
intent to engage in unlawful activity. In actual practice, Re-
spondent selected an employee input committee for the specific
purpose of criticizing a procedure it devised through negotia-
tions with the Union. Respondent then lent support to the le-
gitimacy of that employee committee by informing the crew
leader selection committee of the results of the committee’s
deliberations.
In its argument regarding direct dealing and Workplace Eth-
ics, Respondent agreed that a key inquiry into whether it vio-
lated Section 8(a)(1) and (5) by seeking information from em-
ployees through the input committee, is “whether an em-
ployer’s direct solicitation of employee sentiment over working
conditions is likely to erode ‘the Union’s position as exclusive
representative.” Nevertheless, that is precisely what its action
regarding the crew leader selection input committee, tended to
accomplish. The employee committee was asked if a procedure
Respondent arranged in agreement with the Union was unfair.
Obviously, by its actions in putting that question to the commit-
tee, the Respondent was holding out that it, but not necessarily
the Union, was willing to reconsider the process for selecting
crew leaders. Therefore, it should not be blamed for any “un-
fairness” that may arise under the current system. Instead, by
implication, the only party that should be blamed for any un-
fairness was the Union. That evidence shows that Respondent,
by seeking information from the input committee, was taking
action, which had the tendency to erode the Union’s position.
Allied-Signal, Inc., supra.
Respondent also argued that it is entitled to seek employee
input for bargaining purposes. However, the evidence failed to
show that preparation for negotiations was ever a reason behind
the input committee. According to undisputed evidence, that
committee was formed solely because some senior employees
complained about the crew leader selection process. Moreover,
Respondent never told the Union that it was seeking informa-
tion for bargaining purposes.
I find that Respondent engaged in direct dealing with bar-
gaining unit employees, in violation of Section 8(a)(1) and (5),
by forming an input committee to consider the unfairness of the
crew leader selection process and by advising the crew leader
selection committee of the input committee’s deliberations.
CONCLUSIONS OF LAW
1. Georgia Power Company, is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. International Brotherhood of Electrical Workers Local 84
is a labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent, by unilaterally changing the grievance proce-
dure for bargaining unit employees, by bargaining directly with
bargaining unit employees over its Workplace Ethics program,
and by bargaining directly with bargaining unit employees
concerning its crew leader selection process, has engaged in
conduct in violation of Section 8(a)(1) and (5) of the Act.
4. The aforesaid unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6),
(7), and (8) of the Act.
5. Respondent did not engage in conduct in violation of Sec-
tion 8(a)(1) and (2) as alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that it be ordered to cease and
desist therefore and to take certain affirmative action designed
to effectuate the policies of the Act.
As I have found that as Respondent has illegally changed its
grievance procedures by implementing Workplace Ethics with-
out bargaining with the Union, it is ordered to cease using
Workplace Ethics regarding bargaining unit employees.
[Recommended Order omitted from publication.]