Martin Marietta Energy Systems

National Labor Relations Board - Board Decisions

Mar 27, 1995

316 N.L.R.B. 868 (N.L.R.B. 1995)

868
316 NLRB No. 141
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On February 23, 1994, Administrative Law Judge Peter E. Don-
nelly issued the attached decision. The Respondent filed exceptions
and a supporting brief. The General Counsel and Charging Party
each filed limited exceptions and an answering brief. The Respond-
ent filed a reply brief to the answering briefs.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Respondent has requested oral argument. This request is
hereby denied as the record, exceptions, and briefs adequately
present the issues and the positions of the parties.
We note that there are no exceptions to the judge’s recommenda-
tion to dismiss certain allegations of the complaint.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
4 Although we agree with the judge that the parties had not
reached a valid impasse in bargaining prior to the Respondent’s uni-
lateral implementation of changes in April 1992, we do not rely on
the judge’s unqualified statement that an employer may not propose
continued negotiations and at the same time declare an impasse. We
also do not rely on his conclusion that the Respondent’s unlawful
failure to provide information requested by the Union tainted the al-
leged bargaining impasse.
5 The judge did not include affirmative provisions in his rec-
ommended Order requiring the Respondent, upon request from the
Union, to reinstate unlawfully changed terms and conditions of em-
ployment and to make whole employees for monetary losses, if any,
resulting from those changes. We shall modify the recommended
Order and substitute a new notice including these traditional reme-
dial requirements. Any backpay owed by the Respondent is to be
computed as prescribed in Ogle Protection Service, 183 NLRB 682
(1970), with interest as set forth in New Horizons for the Retarded,
283 NLRB 1173 (1987).
6 The Respondent violated Sec. 8(a)(5) with respect to other infor-
mation. We agree with the judge that the Respondent has not estab-
lished the defense that the furnishing of this information would be
unduly burdensome. In addition, we agree with the judge that this
defense is undermined to some extent by the fact that the Respond-
ent produced the information, albeit in an untimely fashion.
Martin Marietta Energy Systems, Inc. and Oil,
Chemical and Atomic Workers International
Union, Local 3-689, AFL–CIO. Cases 9–CA–
28932, 9–CA–29195, and 9–CA–29669
March 27, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
The issues presented in this case1 are whether the
judge correctly found: that the Respondent violated
Section 8(a)(5) of the Act by refusing to provide bar-
gaining information requested by the Union, by unilat-
erally changing unit employees’ terms and conditions
of employment without reaching a valid impasse in
bargaining with the Union, and by refusing to process
employee grievances; and that the Respondent violated
Section 8(a)(1) of the Act by threatening employees
with discharge for violating a unilaterally promulgated
no-strike rule.
The Board has considered the decision and the
record in light of the exceptions and briefs,2 and has
decided to affirm the judge’s rulings, findings,3 and
conclusions4 as modified below, and to adopt the
judge’s recommended Order as modified.5
1. The Respondent asserts that the judge erred by
failing to make a credibility finding relevant to the
question of whether it had an obligation to provide the
Union with requested information about the cost of
unit employees’ health insurance coverage. The Re-
spondent contends that production of certain cost infor-
mation would have been unduly burdensome. It further
contends that Ronald Wilson, its chief negotiator, in-
formed the Union that to obtain the requested informa-
tion would require purchasing a costly computer pro-
gram and that the Union refused to bargain over any
allocation of costs.
Wilson’s testimony fails to establish the Respond-
ent’s defense. He testified that on April 9 and 10,
1991,
A. . . . Mr. Sparks [the Respondent’s health
plan administrator] explained to the Union that
this information we do not have, it’s all on com-
puter tapes, we would have to ask the carrier to
make a special run, it would cost several thousand
dollars. And I told Mr. Knauff [the Union’s nego-
tiator] we don’t have a need for it and you know,
if they wanted they have to pay for it.
Q. And what was Mr. Knauff’s response to
that?
A. Mr. Knauff said he was not going to pay for
it. And I said we don’t have any need for it.
Even assuming the credibility of this testimony, it
does not meet the Respondent’s burden of proving the
truth of its contentions that production of the requested
information would be unduly burdensome. There is no
showing that Wilson had anything more than an
unverified assumption about what the requested infor-
mation would cost or that he ever confirmed that as-
sumption by requesting cost information from the in-
surance carrier. Thus, the Respondent has not dem-
onstrated a burdensome financial impact so as to put
the Union on notice of a need to bargain about the al-
location of costs associated with compiling the infor-
mation sought. See Tower Books, 273 NLRB 671
(1984). Indeed, Wilson’s testimony shows only that he
made an unconditional demand that the Union pay all
costs if it wanted this information. Under these cir-
cumstances, we affirm the judge’s finding of a Section
8(a)(5) violation.6
2. We agree with the judge’s conclusion that the Re-
spondent’s failure to process grievances violated Sec-
tion 8(a)(5) of the Act. In so finding, however, we
869MARTIN MARIETTA ENERGY SYSTEMS
7 We disavow the implication in fn. 7 of the judge’s decision that
parties have a comparable statutory duty to arbitrate after expiration
of a collective-bargaining agreement. See Nolde Bros. v. Bakery
Workers Local 358, 430 U.S. 243 (1977); Indiana & Michigan Elec-
tric, supra.
8 Cf. Cherry Hill Textiles, 309 NLRB 268 (1992), where the Board
found that the Respondent did not violate Sec. 8(a)(5) by refusing
for 17 days to arbitrate a single grievance raising the same issue as
in unfair labor practice charges pending before the Board.
note that the judge incorrectly referred to the Respond-
ent’s failure to process grievances arising under the
parties’ expired collective-bargaining agreement. The
record supports the Respondent’s contention that, with
a notable exception, it continued to process grievances
in accord with the four-step procedures of the expired
contract. The exception involved all grievances which
challenged the Respondent’s conditions for strikers’ re-
turn to work and the unilateral changes implemented in
April 1992. The Respondent classified more than 1000
grievances filed between April 6, 1992, and May 31,
1993 (over a third of all grievances filed in that pe-
riod), as falling within this category. The Respondent
admits that it did not follow the established grievance
step procedures in summarily denying these griev-
ances, but it contends that it would have been futile to
do more than reject grievances which it believed would
ultimately be resolved in unfair labor practice litiga-
tion.
As a general rule, parties to a collective-bargaining
relationship have a continuing statutory obligation to
adhere to established grievance procedures even after
the expiration of a contract. Bethlehem Steel Co., 136
NLRB 1500 (1962), enfd. in pertinent part 320 F.2d
615 (3d Cir. 1963); Indiana & Michigan Electric Co.,
284 NLRB 53, 54–55 (1987).7 In certain limited cir-
cumstances, however, the pendency of unfair labor
practice charges may present a defense to a refusal to
bargain about grievances involving the same allega-
tions made in those charges. Airport Aviation Services,
292 NLRB 823, 830 (1989).8
We find no merit in the Respondent’s reliance on
Airport Aviation. Unlike the situation in that case,
there were no unfair labor practice charges pending
when the Respondent began rejecting the grievances at
issue. It was not until June 12, 1992, that the Union
filed a charge in Case 9–CA–29669 which alleged,
inter alia, that the Respondent made unlawful unilateral
changes on and after April 6, 1992. (The same charge
alleged the unlawful refusal to process grievances.)
Furthermore, the refusal in Airport Aviation was
limited to a specific class of grievances involving the
dismissal of probationary employees. Consequently,
the respondent employer’s conduct did not threaten the
viability of the basic bargaining relationship or ‘‘ob-
struct the overall functioning of the process of griev-
ance resolution.’’ Id. at 830. In contrast, the Respond-
ent’s refusal to follow grievance procedures here en-
compassed a broad range of grievance issues having to
do with numerous, unilaterally imposed conditions for
strikers’ return to work and changes in unit employees’
working conditions. As indicated, more than a third of
all grievances filed in the year following the end of the
strike entailed such issues. Notwithstanding the Re-
spondent’s willingness to process other grievances in
accord with established procedures, we find that the
breadth of the class of grievances which it refused to
process by those procedures was such that its refusal
constituted ‘‘obstruction of the overall functioning of
the process of grievance resolution.’’ We therefore
agree with the judge’s finding that the Respondent vio-
lated Section 8(a)(5) of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Martin
Marietta Energy Systems, Inc., Piketon, Ohio, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Substitute the following for paragraph 2(b).
‘‘(b) On the Union’s request, process the grievances
at issue in this proceeding.’’
2. Insert the following as paragraphs 2(c) and (d),
and reletter the subsequent paragraphs.
‘‘(c) Reinstate all terms and conditions of employ-
ment of bargaining unit employees that were unilater-
ally changed following the Respondent’s unlawful bar-
gaining impasse.
‘‘(d) Make whole all employees for any losses they
may have suffered by reason of the Respondent’s un-
lawful unilateral changes in their terms and conditions
of employment.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain in good faith with
Oil, Chemical and Atomic Workers International
Union, Local 3-689, AFL–CIO as the exclusive collec-
tive-bargaining representative of an appropriate unit of
our employees, by unilaterally announcing and imple-
menting any changes in unit employees’ terms and
conditions of employment unless we have reached im-
passe in good-faith collective bargaining with the
Union.
870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates refer to 1991 unless otherwise indicated.
2 Shift overlap was desirable to ensure smooth transitions between
shifts.
WE WILL NOT refuse to process grievances in accord
with procedures set forth in the expired 1988 contract
with the Union.
WE WILL NOT refuse to furnish information re-
quested by the Union concerning the cost of health
care and the cost of training unit employees.
WE WILL NOT threaten employees with discharge for
violating a unilaterally promulgated no-strike clause.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL, on request, bargain in good faith with Oil,
Chemical and Atomic Workers International Union,
Local 3-689, AFL–CIO as the collective-bargaining
representative of the unit employees.
WE WILL, on request by the Union, reinstate any
term and condition of unit employees’ employment
which we unilaterally changed on and after April 6,
1992, and WE WILL make whole all employees for any
losses they may have suffered by reason of those uni-
lateral changes.
WE WILL, on request by the Union, process those
grievances which we have previously refused to proc-
ess in accord with the procedures set forth in the ex-
pired 1988 contract.
WE WILL, on request by the Union, provide informa-
tion about the cost of health care and the cost of train-
ing unit employees that we have previously refused to
provide.
WE WILL rescind any unilaterally promulgated no-
strike clause threatening employees with discharge for
striking.
MARTIN MARIETTA ENERGY SYSTEMS, INC.
Patricia Rossner Fry, Esq., for the General Counsel.
Thomas M. Tarpy and Andrew C. Smith, Esqs., of Columbus,
Ohio, for the Respondent.
John R. Doll, Esq., of Dayton, Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge. Upon
charges filed by Oil, Chemical and Atomic Workers Inter-
national Union, Local 3-689, AFL–CIO (Union or Charging
Party) the Regional Director for Region 9 issued an order
consolidating cases, second consolidated complaint and no-
tice of hearing dated November 25, 1992, alleging that Mar-
tin Marietta Energy Systems, Inc. (Respondent or Employer)
had violated Section 8(a)(1) of the Act by unilaterally pro-
mulgating a no-strike clause threatening employees with dis-
charge for striking, and Section 8(a)(3) of the Act by failing
to pay striking employees vacation pay. The consolidated
complaint also alleges violations of Section 8(a)(5) by refus-
ing to furnish the Union with information concerning the
cost of training unit employees and information concerning
health care costs; insisting that the Union agree to contract
provisions providing that Department of Energy (DOE) or-
ders, directives, and regulations would supersede conflicting
contract provisions; unilaterally implementing new working
conditions included in its bargaining proposals in the absence
of a lawful impasse in negotiations; and refusing to process
certain grievances filed after striking employees returned to
work. This case was heard before me on August 17 through
August 20, 1993. Briefs have been timely filed by General
Counsel, Respondent, and Charging Party, which have been
considered.
FINDINGS OF FACT
I. EMPLOYER’S BUSINESS
Employer is a corporation engaged in the production and
sale of enriched uranium at its Piketon, Ohio facility. During
the past 12 months, the Employer, in conducting these oper-
ations, sold and shipped from its Piketon, Ohio facility goods
valued in excess of $50,000 directly to points outside the
State of Ohio. The complaint alleges, the answer admits, and
I find that the Employer is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, the Respondent admits, and I find
that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The Federal government, under the aegis of the Depart-
ment of Energy (DOE), is the owner of a uranium enrich-
ment plant in Piketon, Ohio. The plant was operated under
contract with the DOE by Good Year Atomic Corporation
until 1986, when the Respondent took over the operation of
the plant, also under contract with DOE.
The approximately 1000 hourly employees at the plant
have been represented by the Union since 1955. When Re-
spondent took over the plant in 1986, it assumed the existing
collective-bargaining agreement with the Union which ex-
pired in 1988. A successor contract was negotiated in 1988
with an expiration date of 12:01 a.m., May 2, 1991.1
In late 1990, prior to the start of negotiations for a new
contract, which began in March 1991, the Respondent identi-
fied to the Union certain major issues upon which it would
be seeking changes. Specifically, with respect to the matter
of overtime, Respondent wanted changes to allow it more
flexibility in the assignment of overtime. As to the ‘‘move-
ment’’ issue, Respondent was seeking changes to allow it to
fill vacancies without observing restrictive job bidding prac-
tices which it contends caused excessive job movement with-
in work groups and job classifications. As to shift overlap,
Respondent wanted changes from the existing overtime guar-
antees of at least 4 hours’ pay, no matter how much overtime
is worked. Respondent was proposing 12 minutes of paid
overtime, 4 hours’ overtime only if the overtime exceeded 12
minutes.2 Another issue was the matter of DOE directives.
Since Respondent operates under the supervision of the
871MARTIN MARIETTA ENERGY SYSTEMS
3 It appears that the principal spokesmen for the negotiations were
Mack Wilson, vice president human resources, for the Respondent,
and John Knauff, union president.
DOE, it sought a provision in the new contract which would
give DOE directives precedence over the provisions of the
contract in the event of a conflict with the contract. As to
the matter of drug testing, Respondent sought the implemen-
tation of a drug testing program.
Negotiations for a new contract began on March 27, at
which time the parties simply exchanged written proposed
revisions to the existing contract, and the next meeting was
set for April 8.3
One of the changes being explored by the Union was
health insurance coverage. Respondent is self-insured under
a plan administered by Connecticut General Insurance Com-
pany, with employees contributing 6 percent of the cost of
their coverage. According to the Union, premiums were ris-
ing and it sought information from the Respondent as to the
calculations used to compute the employees’ 6-percent con-
tribution. The information had been requested to provide
Blue Cross-Blue Shield with total health cost information in
order to enable it to bid on health care coverage. Some infor-
mation was provided, but information concerning claims in
excess of $25,000 was not provided nor were the claims bro-
ken down by health care provider. This information was not
provided until, pursuant to litigation by the Union in Decem-
ber 1992, the Respondent disclosed documents revealing
breakdowns of various cost items, including cost of coverage
for individuals. Those calculations needed to compute the 6-
percent employee contribution figure have never been sup-
plied.
Beginning on April 8, the parties engaged in some 15 bar-
gaining sessions during the month of April. However, while
some agreements were reached, there was no significant
progress by the parties on the major issues. On April 30, Re-
spondent presented to the Union a document captioned
‘‘Comprehensive Offer for Settlement of All Noneconomic
and Economic Items.’’ This proposal was unacceptable to the
Union, and it submitted to the Respondent a one-page docu-
ment, ‘‘Union Comprehensive Counter to Company Offer on
4/30/91.’’
On May 1, as the contract was expiring, Respondent sub-
mitted to the Union a document captioned ‘‘Best and Final
Offer for Settlement of All Noneconomic and Economic
Items.’’ This was a comprehensive proposal revising some of
the prior day’s proposals, but maintaining Respondent’s basic
position on those items most important to it.
At this point, the contract having expired, Respondent’s
last offer was brought to a vote before the membership. It
was not supported by the union negotiating committee, and
the proposal was rejected by the membership.
On May 21, the Union, in a document captioned ‘‘Union
Comprehensive Counter to Provide Resolution on Major
Issues,’’ proposed revisions to several existing contract pro-
visions and stating as to seven Respondent proposals that
they ‘‘must be withdrawn,’’ including several which had
been the most difficult to resolve.
The parties continued to meet, with sessions on May 22,
June 10 and June 11, but failed to reach agreement on a con-
tract, and on June 11, the Union struck the plant. The plant,
however, continued to operate, utilizing management and
nonunit employees.
Prior to the strike, many employees had already scheduled
vacations. It was the policy of Respondent to pay these em-
ployees, now on strike, for their vacation time at the time the
vacation was scheduled. However, due to the failure of some
supervisors to submit employee timecards showing the
scheduled vacation, several unit employees were not paid at
the time of their scheduled vacation. These situations were,
however, rectified once they came to the attention of Sharon
Williams, Respondent’s department head in charge of union
relations.
Shortly after the strike began, in what were described as
‘‘leaks’’ to the press, Respondent was quoted as saying that
bargaining unit training costs incident to the job movement
of employees were costing $670,000. This issue had first
been raised in negotiation by the Respondent on April 9 in
a document captioned ‘‘Movement Impacts,’’ which recites
job movement as creating ‘‘Training Costs.’’
After the strike began, the Union requested at two nego-
tiating sessions that Respondent furnish information about
the need for training and the costs associated with training.
Respondent declined to provide the information at the time,
although it was finally provided in September 1992 after the
unfair labor practice charges herein had been filed.
After the strike began, negotiations were resumed on July
12 and the parties continued to meet during the strike. Wil-
son continued to promote his position that relief on the sig-
nificant issues was essential, but the Union continued to re-
sist any substantial revisions in its own proposal on those
matters.
In October 1991, a new Federal mediator was brought in
to assist the negotiations and the parties continued to meet
both on and off the record to resolve the key issues, but
without success.
During January and until February 15, 1992, the parties
held some 16 negotiating session and at about 4 a.m. on Feb-
ruary 15, Respondent submitted to the Union a comprehen-
sive written proposal captioned ‘‘Offer for Settlement of All
Noneconomic and Economic Items.’’ This proposal discloses
several revisions by Respondent on many of the key issues,
including a drug program, DOE orders, realignment, job
posting, shift overlap pay, and overtime. This proposal also
contained a section captioned ‘‘Conditions of Return to
Work,’’ reciting certain reporting and training requirements
for returning strikers. Later on February 15, Wilson re-
quested Knauff to present the proposal to the membership for
a vote. However, at about 6 p.m. that day, Knauff rejected
the proposal, concluding that it was still inadequate, and de-
clined to present it to the membership. The Union then sub-
mitted its own counterproposal to the Respondent captioned
‘‘Union Comprehensive Counter-Offer for Settlement of All
Noneconomic and Economic Items.’’ In this proposal, the
Union revised its position on the drug program, DOE orders,
realignment, shift overlap, and overtime. However, these pro-
posals were not acceptable to the Respondent.
With respect to the DOE orders, the parties were still in
disagreement. In an effort to resolve this major obstacle to
settlement, Union International President Robert Wages and
Respondent Vice President Robert Leonard, met off the
record. However, their efforts failed and although they ex-
changed revised proposals, the basic conflict persisted. The
872 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Attachments to the letter are omitted but appear in the record as
part of G.C. Exh. 30.
5 Federal legislation providing for the establishment of a wholly
owned government corporation known as the ‘‘United States Enrich-
ment Corporation’’ appears in 42 § 2297. Specifically, 42 § 2297 (b)
4(e)(1) and (2), which read:
(e) Protection of existing employees
(1) In general
It is the purpose of this subsection to ensure that the estab-
lishment of the Corporation pursuant to this subchapter shall not
result in any adverse effects on the employment rights, wages,
or benefits of employees at facilities that are operated, directly
or under contract, in the performance of the functions vested in
the Corporation.
(2) Applicability of existing collective bargaining agreement
Any employer (including the Corporation) at a facility de-
scribed in paragraph (1) shall abide by the terms of a collective
bargaining agreement in effect on April 30, 1991, at each indi-
vidual facility until—
(A) the earlier of the date on which a new bargaining agree-
ment is signed; or
(B) the end of the 2-year period beginning on October 24,
1992.
Union still sought bargaining prior to implementation of any
DOE order, and Respondent proposing immediate implemen-
tation and thereafter bargaining over the effects of the imple-
mentation. The Respondent did, however, revise its proposal
to provide that wages, seniority, and fringe benefits could not
be affected by DOE orders. On March 20, 1992, the parties
exchanged, at the local level, the same proposals exchanged
between Wages and Leonard.
On March 23, 1992, after some discussion about the possi-
bility of ending the strike and returning to work, the mem-
bership authorized the union negotiating committee to make
an unconditional offer of return to work. This was done by
letter dated March 27, 1992. Respondent agreed to the return
of strikers under certain conditions, but the Union declined
to define the term, simply reiterating that its return would be
‘‘unconditional.’’ On April 1, 1992, Respondent distributed
a letter signed by Wilson reciting the terms and conditions
under which employees would be allowed to return to work.
The letter, captioned ‘‘Company’s Response to Union’s Un-
conditional Offer to Return to Work,’’ reads:
The Company accepts the Union’s unconditional
offer dated March 27, 1992 to return to work. Employ-
ees will return to work on Monday, April 6, 1992 un-
less otherwise advised to the contrary by the Union.
Employees will report to the Stone & Webster Building
(SWEC) at the times indicated in Attachment A, Return
to Work Schedule for Monday, April 6, 1992, to begin
the required reentry training. Until ratification of a new
collective bargaining contract, the returning employees’
wages, hours and conditions of employment shall be as
contained in the Company’s Offer for Settlement of all
Noneconomic and Economic Items, dated February 15,
1992, as modified on March 20, 1992, with respect to
Protective Security and DOE Orders and Conditions of
Return to Work, Attachment B, which offer shall be-
come effective April 6, 1992.
All returning employees shall receive a 2.5% in-
crease effective April 6, 1992.
The operator and Steam Plant upgrades shall also be-
come effective April 6, 1992. These upgrades are in ad-
dition to the 2.5% wage increase and apply to the fol-
lowing classifications:
Assistant Boiler Uranium Material Handler
Operator
Power Operator Utilities Operator
Boiler Operator Production Process Operator
Chemical Operator Uranium Material Handler-in-
Training
Distribution and Stationary Engineer
Inspection Operator
Article V (Continuity of Operation) will be in effect
for a period of at least 180 calendar days following
April 6, 1992. The Union will give 15 calendar days
written notice to the company prior to the date a strike
would commence after the 180-day period.
The acceptance shall have no effect whatsoever on
the current bargaining proposals of either party in the
negotiations for a new collective bargaining contract.
Upon request by the Union the Company will resume
negotiations at mutually agreeable times and places.
The negotiating positions of the parties shall not be
compromised or prejudiced in any way by this re-
sponse.
Both parties will endeavor to return the plant to nor-
mal operations as safely and smooth as possible.4
Despite their disagreement with the conditions set out by
Respondent in this letter, the striking employees nonetheless
returned to work on April 6 and Respondent implemented the
terms and conditions of employment described above.
After the strikers returned to work, the Union filed numer-
ous grievances. Respondent refused to process any griev-
ances having to do with the newly implemented terms and
conditions of employment, that is, Respondent’s February 15,
1992 contract proposal, together with its March 20, 1992
DOE proposal, or those grievances dealing with ‘‘Conditions
of Return to Work’’ dated March 20, 1992, such as retrain-
ing.
Following the return to work on April 6, 1992, negotia-
tions continued on a new contract with bargaining sessions
being held on April 16, 1992, and continuing with about six
more meetings during the period from May 6 through June
5, 1992.
Sometime during the summer of 1992, the Respondent de-
cided, in compliance with provisions of Federal legislation
drafted to protect existing employees during the establish-
ment of a ‘‘United States Enrichment Corporation,’’ that it
would return to and abide by the contract in effect on April
30, 1991, pending either the negotiation of a new contract,
or the end of a 2-year period beginning on October 24, 1992,
whichever comes first.5
B. Analysis and Recommendations
1. Unilateral implementation of terms and conditions of
employment—impasse
As a matter of Board and court law, an employer may not
unilaterally implement changes in the working conditions of
employees, even after the expiration of a contract, unless an
impasse has been reached in negotiations between the parties.
NLRB v. Katz, 390 U.S. 736 (1962).
873MARTIN MARIETTA ENERGY SYSTEMS
6 Poststrike negotiations were first scheduled for April 6 and 7,
1992, subsequently postponed to begin April 16, 1992.
7 Having concluded that there was no impasse in negotiation when
the striking employees returned to work, it is clear that the terms
and conditions of employment for returning employees, including the
grievance and arbitration provisions, would be those contained in the
expired 1988 contract. Nolde Bros. v. Bakery Workers Local 358,
430 U.S. 243 (1977); Columbia Portland Cement Co., 294 NLRB
410 (1989). Accordingly, I find that by refusing to process griev-
ances arising under the 1988 contract, Respondent violated Sec.
8(a)(5) of the Act.
8 Having also concluded below that Respondent violated Sec.
8(a)(5) of the Act by refusing to furnish information concerning
health care costs and training costs to the Union, I also conclude that
any alleged impasse was tainted by Respondent’s own unlawful ac-
tivity.
9 NLRB v. Borg-Warner Corp., 356 U.S. 342 (1958).
It is the position of the General Counsel that the parties
were not at impasse in the negotiations for a collective-bar-
gaining agreement when the striking employees returned to
work on April 6, 1992, and that absent such an impasse, Re-
spondent violated Section 8(a)(5) of the Act by implementing
its last offer of February 15, 1992, at that time. Respondent
contends that impasse had been reached and that, under ex-
isting Board and court law, it was privileged to implement
the provisions of its last proposal.
The criteria for determining whether or not impasse exists
at any given time is a matter of judgment based on the rel-
evant considerations, some of which were identified by the
Board in Taft Broadcasting, 163 NLRB 475, 478 (1967),
wherein the Board states:
Whether bargaining impasse exists is a matter of judg-
ment, the bargaining history, the good faith of the par-
ties in negotiations, the length of the negotiations, the
importance of the issue or issues as to which there is
disagreement, the contemporaneous understanding of
the parties as to the state of the negotiations, are all rel-
evant factors to be considered in deciding whether an
impasse in bargaining existed.
It is necessary therefore to review the record here and to
determine the status of negotiations on April 1 when the Re-
spondent announced and then implemented its last proposal.
Having done so, I am satisfied that no impasse in bargaining
existed at the time Respondent announced and implemented
the provisions contained in its April 1 letter captioned
‘‘Company’s Response to Union’s Unconditional Offer to
Return to Work.’’
While it is true that little progress was made over the
course of previous bargaining sessions on many of those
issues most important to the Employer, the fact that many
bargaining sessions preceded the implementation does not,
without more, support the conclusion that impasse had been
reached. To resolve that issue, one must look at the state of
affairs at the critical time when the proposal was imple-
mented. In the instant case, progress was made in negotia-
tions during January and February 1992. On February 15,
1992, the parties had exchanged proposals containing sub-
stantial revisions from those contained in the previous pro-
posals, and on March 20, proposals were exchanged on the
DOE issue, substantially modifying the prior positions of the
parties.
But even more significantly, the record discloses that even
after the strikers returned and Respondent’s proposals were
implemented, further contract negotiations between the par-
ties had been contemplated and did in fact take place.6 It is
evidence that poststrike contract negotiations were con-
templated in letters from the Respondent dated March 27 and
April 1. Respondent does not assert the existence of any im-
passe in either of these letters.
How is it possible to conclude that further bargaining
would have been futile, when the parties themselves intend
to continue to negotiate and do so? It seems to me that Re-
spondent may not propose continued negotiations and at the
same time declare an impasse. These are inconsistent con-
cepts. In my opinion, it was the ‘‘contemporaneous under-
standing’’ of the parties that contract negotiations would con-
tinue after the strikers returned to work and that impasse had
not been reached.7 To conclude that further negotiations
would be futile would be to substitute my judgment for the
perception of the parties.8
2. No-strike clause
As a part of its ‘‘Response’’ letter of April 1, 1992, Re-
spondent states that the ‘‘Continuity of Operations’’ provi-
sion (article V) of the 1988 contract will be in effect for at
least 180 days after April 6 (the date the strikers returned to
work) and that thereafter, the Union will give 15 calendar
days written strike notice to Respondent. The 1988 contract
provides for discharge of any employee in violation of article
V.
In its totality, article V, as expanded by the time con-
straints set out by Respondent in its ‘‘Response’’ letter, pro-
vides for the discharge of any employee violating article V.
This is tantamount to a new condition of employment con-
taining a threat of discharge to employees who violate those
conditions. In my opinion, this constitutes an unlawful threat
to employees in the exercise of their right to strike under
Section 7 of the Act, and this is true regardless of whether
or not it would have violated Section 8(a)(1) for Respondent
to have promulgated the no-strike clause which did not con-
tain such a threat. Therefore, Respondent’s citation of
McClatchy Newspapers, 307 NLRB 773 (1992), is inap-
posite.
3. Department of Energy (DOE) orders
The General Counsel alleges in its complaint that Re-
spondent violated Section 8(a)(5) of the Act by demanding
‘‘as a condition of consummating any collective-bargaining
agreement that the Union agree to a provision that any or-
ders, directives or regulations issued by the United States
Department of Energy (DOE) would supersede any contrac-
tual provisions.’’ As defined by the Supreme Court in Borg-
Warner,9 mandatory bargaining subjects are those subjects
which relate to wages, hours, and other terms and conditions
of employment. There exists a duty to bargain in good faith
on those subjects. As for other matters, the parties are free
to bargain or not to bargain without violating their duty to
bargain under Section 8(a)(5) of the Act.
With respect to these permissive subjects of bargaining,
however, neither Union nor Employer may insist to impasse
on such subjects. Neither may they condition agreement to
any contract on the inclusion of the permissive proposal; nor
874 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 In reaching this conclusion, I am persuaded, based on this
record, that the orders, regulations and directives of the DOE are not
simply advisory. If Respondent were free to disregard DOE orders,
regulations, or directives, another conclusion might be reached since,
under that scenario, insistence on bargaining those matters would be
outside the scope of the employer-employee relationship.
11 Nor do I agree with Respondent that any violations are ‘‘tech-
nical’’ and too insignificant to be worthy of a remedial order.
condition further bargaining on acquiescence to the permis-
sive subject. Taft Broadcasting Co., 274 NLRB at 261.
First, we must determine whether or not the subject was
permissive or mandatory. General Counsel and Charging
Party contend that the DOE item is a permissive subject, i.e.,
not related to terms or conditions of employment since it rep-
resents an effort by the Respondent to voluntarily assume ob-
ligations under a contract with a customer, thereby vesting
in this third party, all control over any provision of the col-
lective-bargaining agreement.
Respondent, on the other hand, contends that since it has
an obligation under its contract with the DOE for the oper-
ation of the facility which requires compliance with DOE or-
ders, regulations and directives, that the subject is a manda-
tory bargaining subject because it directly affects the work
relationship between Respondent and its employees.
In my opinion, DOE orders, directives, and regulations, al-
though emanating from a third party (DOE), nonetheless re-
late directly to the working conditions of employees, and the
issue is a mandatory bargaining subject. Ford Motor Co. v.
NLRB, 441 U.S. 488 (1979).10
Moreover, even assuming, arguendo, that the DOE item
were a permissive subject, I would not conclude, based on
this record, that Respondent were insisting on it to impasse
or as a precondition to further bargaining. The parties had
voluntarily bargained concerning the DOE matter. Both had
modified their original proposals. Further, no impasse was
reached nor does the evidence support the conclusion that
further bargaining was conditioned on the Union’s acquies-
cence to the Respondent’s position on the DOE matter.
4. Refusal to furnish information
The General Counsel contends that Respondent violated
Section 8(a)(5) of the Act by refusing to provide information
to the Union concerning health care costs for unit employees
and information concerning training costs for employees in
the unit.
With respect to the health care costs, it appears, as noted
above, that the Respondent is self-insured under a plan ad-
ministered by Connecticut General Insurance Company. The
cost to unit employees is 6 percent of the total health care
coverage.
The Union requested Respondent to provide information
disclosing its costs, particularly those including large claims
over $25,000, and the amounts paid to certain providers. The
reason for seeking this information was to provide other in-
surance companies, notably Blue Cross-Blue Shield, with the
information necessary for them to bid for coverage. Those
calculations used in arriving at the 6-percent employee con-
tribution were sought because the Union wanted a break-
down of the factors used to arrive at the 6-percent figure.
Under Board and Court law, a union is entitled to informa-
tion necessary and relevant to its function as the collective-
bargaining representative of unit employees. In the instant
case, the parties were negotiating a new contract and the in-
formation sought, in my opinion, was relevant to proposals
being explored by the Union for presentation to the Respond-
ent. The information sought was clearly relevant to the
Union’s collective-bargaining responsibilities. It is undisputed
that some information was provided in April 1991, however
no breakdown of cost information showing claims paid for
unit employees or the actual covered membership on a
monthly basis was provided. Respondent contended at the
time that the information was not available. In a lawsuit
brought by the Union, however, much of the requested infor-
mation was provided in the fall of 1992 pursuant to litigation
brought by the Union. Information to determine the calcula-
tions comprising this 6-percent employee contribution has
never been produced.
Respondent argues that it gave the Union all the informa-
tion available to it and that it would have been unduly bur-
densome for Respondent to have complied with the addi-
tional information request made by the Union. This conten-
tion is not supported by the record, however, particularly
where a substantial amount of the information sought was
later produced during litigation in the fall of 1992.
Turning now to the Union’s request for information related
to job training costs, it is clear that during negotiations the
matter was raised by the Respondent in reciting that training
costs, in essence, were an ‘‘Impact’’ and, therefore, one
would assume, a consideration in Respondent’s contract pro-
posals to reduce job movement. But Respondent contends
that it did not claim any inability to pay training costs and
therefore was under no obligation to provide any breakdown
of training costs as requested by the Union. I do not agree.
Once having raised the matter of training costs as an impact
of job movement, Respondent may not now be heard to jus-
tify denial of that information on the grounds that it did not
profess any inability to pay. Accordingly, I conclude that by
refusing to furnish both the health care cost and training cost
information requested, Respondent violated Section 8(a)(5) of
the Act.11
5. Vacation pay
Vacations were normally scheduled through employees’
immediate supervisor; and at the time an employee took the
scheduled vacation, it was the responsibility of the supervisor
to submit the employee’s timecard so that the employee
could be paid.
During the strike, supervisors were instructed to submit
employee timecards showing scheduled vacation at the time
the vacations were scheduled so that even though the em-
ployee was on strike, he could be paid at time.
Despite these instructions, it appears that some 10 employ-
ees, out of approximately 200 to 300 who had scheduled va-
cation, were not paid for their vacation at the time it was
scheduled because of a failure by their supervisors to submit
their timecards. It is undisputed that when these instances
were called to the attention of management, the vacation
time was paid.
Under circumstances where scheduled benefits have been
withheld, it is the burden of the General Counsel to show
that these benefits were due and payable, which has been
done, and also to show that the benefit was withheld on the
875MARTIN MARIETTA ENERGY SYSTEMS
12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
13 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
Continued
apparent basis of the strike. Texaco, Inc., 285 NLRB 241
(1987). This, the General Counsel has not done. The facts
disclose that while a relatively few employees were not paid
their vacation time when the vacation was scheduled, the
failure to pay them on time was due to a failure on the part
of supervisors to timely submit their timecards. There has
been no showing that the failure was intentional or discrimi-
natory. It is not difficult to envision in a strike situation,
while the plant is being operated by management employees,
for this to occur. Had these employees been working, they
could have promptly advised their supervisors and the prob-
lem could have been promptly resolved.
In short, I cannot conclude that the temporary failure to
pay vacation pay to a few employees, where the failures
were rectified by Respondent when it became aware of them,
violates Section 8(a)(3) of the Act.
Moreover, even assuming that the General Counsel had
satisfied its burden of making a prima facie showing, I am
satisfied, based on the entire record, that Respondent has
shown that any temporary failure to pay vacation benefits
was and not motivated by discriminatory considerations nor
was it inherently destructive of any Section 7 employee
rights. See Texaco, Inc., supra at 246. Accordingly, I con-
clude that Respondent did not violate Section 8(a)(3) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent, as set forth in section III,
above, in connection with Respondent’s operation described
in section I, above, have a close and intimate relationship to
trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. REMEDY
Having found that Respondent has engaged in and is en-
gaging in unfair labor practices, I shall recommend that they
cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Martin Marietta Energy Systems, Inc.,
is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Oil, Chemical and Atomic Workers International Union,
Local 3-689, AFL–CIO is a labor organization within the
meaning of Section 2(5) of the Act.
3. At all times material herein, the following described
unit has been an appropriate unit for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
All hourly employees, excluding police and salaried
personnel as set forth in the National Labor Relations
Board certification in Case No. 9-RC-2361.
4. At all times material herein, the Union has been and is
now the exclusive representative of the employees in the
above-described bargaining unit for the purposes of collec-
tive bargaining within the meaning of Section 9(a) of the
Act.
5. Respondent and the Union were parties to a collective-
bargaining agreement effective May 2, 1988, through May 1,
1991.
6. By unilaterally announcing and implementing on April
1, 1992, its comprehensive contract proposal of February 15,
1992, and its proposal relating to ‘‘Protective Security and
DOE Orders’’ without a valid impasse having been reached,
Respondent violated Section 8(a)(5) of the Act.
7. By refusing to process grievances under the expired
1988 contract after unit employees returned to work on April
6, 1992, Respondent violated Section 8(a)(5) of the Act.
8. By refusing to furnish information concerning the cost
of health care and the cost of training unit employees, Re-
spondent violated Section 8(a)(5) of the Act.
9. By threatening employees with discharge for violating
a unilaterally promulgated no-strike clause, Respondent vio-
lated Section 8(a)(1) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
The Respondent, Martin Marietta Energy Systems, Inc.,
Piketon, Ohio, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain collectively within the meaning of
the Act by unilaterally announcing and implementing on
April 1, 1992, its comprehensive contract proposal of Feb-
ruary 15, 1992, and its proposal relating to ‘‘Protective Secu-
rity and DOE Orders’’ without valid impasse having been
reached.
(b) Refusing to process grievances under the expired 1988
contract after the unit employees returned to work on April
6, 1992.
(c) Refusing to furnish information concerning the cost of
health care and the cost of training unit employees.
(d) Threatening employees with discharge for violating a
unilaterally promulgated no-strike clause.
(e) In any like or related manner interfering with, restrain-
ing, 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 ef-
fectuate the policies of the Act.
(a) On request, bargain with the Union as the collective-
bargaining representative of unit employees.
(b) Upon request, process, under the grievance and arbitra-
tion provisions of the expired 1988 contract, those grievances
arising after the expiration of that contract.
(c) Furnish, on request, information concerning the cost of
health care and the cost of training unit employees.
(d) Rescind any unilaterally promulgated no-strike clause
threatening employees with discharge for striking.
(e) Post at its Piketon, Ohio facility copies of the attached
notice marked ‘‘Appendix.’’13 Copies of the notice, on forms
876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
provided by the Regional Director for Region 9, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customar-
ily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.