Praxair, Inc.

National Labor Relations Board - Board Decisions

May 15, 1995

317 N.L.R.B. 435 (N.L.R.B. 1995)

435
317 NLRB No. 67
PRAXAIR, INC.
1 We disavow the judge’s suggestion in the second paragraph of
fn. 8 that the Respondent’s counsel breached the Code of Profes-
sional Conduct.
2 All subsequent dates are in 1993.
Praxair, Inc. and Teamsters Local Union No. 519.
Case 10–CA–27241
May 15, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On July 7, 1994, Administrative Law Judge Robert
C. Batson issued the attached decision. The General
Counsel filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and brief and has decided to affirm the judge’s rulings,
findings,1 and conclusions only to the extent consistent
with this Decision and Order.
The judge dismissed the complaint allegation that
the Respondent refused to provide the Union with the
Company’s rules, written or verbal, which could lead
to employee discipline. For the reasons set forth below,
we reverse.
On May 6, 1993,2 the Union’s business agent, Allen
Anderson, asked the Respondent to provide the Union
with the Company’s rules regarding disciplinary poli-
cies. The Union explained that it sought the informa-
tion to facilitate administration of the parties’ current
collective-bargaining agreement. Receiving no re-
sponse, in late October Anderson called the Respond-
ent’s plant manager, Gary Fiorino, concerning the mat-
ter. Fiorino claimed that there were no work rules. In
a November 15 letter to the Union, the Respondent
stated that many of its policies appeared in the parties’
contract, but other relevant policies were not in writing
and were determined case-by-case based on a progres-
sive discipline system.
On November 29, the Union responded with a re-
quest for the Company’s ‘‘verbal rules reduced to writ-
ing and any written rules which could lead to dis-
cipline [and] a copy of the progressive steps for each
of these rules.’’ By letter dated December 3, the Re-
spondent refused to ‘‘generate a written set of discipli-
nary rules.’’ The Respondent also advised the Union of
its right to negotiate a contract containing disciplinary
rules. The Union had unsuccessfully attempted to in-
clude disciplinary rules in the parties’ contract.
The judge dismissed the complaint, finding in es-
sence, that the Respondent does not maintain written
work rules and that the General Counsel was attempt-
ing to force the Respondent to create a set of discipli-
nary rules and reduce them to writing. We disagree.
At the outset, we observe that the principle on
which the judge relied is correct: The Board has no au-
thority to dictate terms of an agreement. Thus, we do
not require the Respondent to create work rules that
previously did not exist. Based on the record, however,
we disagree with the judge’s apparent conclusion that
the Respondent maintains no work rules.
The record contains evidence of both written and
verbal work rules. The following rules are not dis-
puted:
1. Facial hair is not permitted.
2. The presence of two employees in the plant
is required during the performance of certain
work.
3. An employee is required to obtain permis-
sion to arrive at work before the beginning of his
scheduled shift.
4. An employee is required to notify the Re-
spondent about leaving work before the end of a
shift.
5. An employee is required to notify the Re-
spondent of an absence before the beginning of a
scheduled shift.
6. There is a rule regarding an employee arriv-
ing at work late.
The Respondent also admits that it has a number of
work rules dealing with smoking, alcohol, drugs, and
firearms on company property.
Further, the Respondent has disciplined employees
for violating both written and verbal rules. For exam-
ple, the Respondent admitted that it has disciplined
employees for tardiness and absenteeism. The Re-
spondent has issued a series of written reprimands to
employees for violating the written rule prohibiting fa-
cial hair. In addition, the Respondent, pursuant to a
contractual rule, has disciplined employees for not re-
porting to work for 3 consecutive days without notify-
ing the Respondent. Finally, the Respondent dis-
charged employee Harrell, inter alia, for leaving work
before the end of a shift without notifying his super-
visor. When the Union arbitrated the discharge, the
Respondent’s defense stated that
employees had been verbally informed of the rule
that if they were going to leave the plant prior to
the end of their scheduled shift, they must notify
[the plant manager] or [a] supervisor . . . . The
grievant’s notice to another employee . . . did not
suffice to bring him into compliance with the rule.
Westinghouse Electric Corp., 239 NLRB 106, 107
(1978), enfd. as modified 648 F.2d 18 (D.C. Cir.
1980), establishes that an employer must furnish infor-
mation a union requests if there is a probability that
the information is relevant and necessary to the union
436 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Contrary to the implication of our dissenting colleague, we do
not find a violation for failure to generate a list of work rules at the
Union’s request. The record demonstrates that the Respondent main-
tained verbal work rules that it communicated to employees and that
it expected employees to obey. Discipline resulted from the failure
to follow those verbal work rules. We reiterate that we do not re-
quire the Respondent to advise the Union when it will discipline em-
ployees for the violation of such verbal work rules; we simply re-
quire the Respondent to inform the Union of the rules themselves.
Finally, our dissenting colleague’s assertion notwithstanding, we note
that part of the Respondent’s violation was its failure to provide the
Union with a copy of its safety manual containing some of the writ-
ten rules. The Respondent’s offer to provide the safety manual, re-
ferred to by the dissent, was made to the General Counsel rather
than the Union; the General Counsel did not advise the Union of the
offer; and the offer was made after the Union filed the charge in
this case. Based on the allegations contained in the complaint and
the evidence adduced at the hearing, we find a violation for the rea-
sons stated in this Decision and Order.
4 In claiming that the Respondent does not have a disciplinary pol-
icy, Fiorino testified that although the Company had rules, a viola-
tion of a rule would not necessarily result in discipline. The judge
apparently took this testimony to mean that the Company did not
have work rules. Given the evidence in the record, this obviously
cannot be what Fiorino meant.
5 The judge sought to distinguish two Board cases on which the
General Counsel relied. In doing so, however, he was relying on his
apparent conclusion that no work rules exist. Having found that
work rules actually do exist, we conclude that the Respondent may
not avoid its obligation to furnish the requested information by argu-
ing that its work rules are not in writing. Champ Corp., 291 NLRB
803, 809, 878–879 (1988), enfd. 913 F.2d 639 (9th Cir. 1990);
Safeway Stores, 252 NLRB 1323 (1980), enfd. 691 F.2d 953 (10th
Cir. 1982).
6 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
in carrying out its statutory duties as the employees’
bargaining representative. The duty to furnish informa-
tion ‘‘stems from the underlying statutory duty im-
posed on employers and unions to bargain in good
faith with respect to mandatory subjects of bargain-
ing.’’ Cowles Communications, 172 NLRB 1909
(1968). Work rules that could be grounds for discipline
are mandatory subjects of bargaining. Womac Indus-
tries, 238 NLRB 43 (1978); Murphy Diesel Co., 184
NLRB 757, 762 (1970), enfd. 454 F.2d 303 (7th Cir.
1971). Regardless of whether a union has requested
such information to negotiate a new contract or, as
here, to administer an existing contract, the employer’s
obligation to supply the information is predicated on
the union’s need ‘‘to provide intelligent representation
of the employees.’’ Westinghouse, supra. A union with
a duty to represent employees in disciplinary proceed-
ings has the right to be informed of the existing work
rules that might lead to discipline of unit employees.
Laidlaw Waste Systems, 307 NLRB 1211, 1213–1214
(1992) (respondent unlawfully refused to provide the
union with a safety rule involved in a grievance).
Given our finding that the Respondent maintains and
enforces written and verbal work rules,3 it follows that
the Union is entitled to be informed of those rules.4
Accordingly, the Respondent’s refusal to provide the
Union with the Company’s written and verbal rules
that could lead to employee discipline violated Section
8(a)(5).5
ORDER
The National Labor Relations Board orders that the
Respondent, Praxair, Inc., Knoxville, Tennessee, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to provide Teamsters Local Union No.
519 (the Union) with the Company’s written and
verbal rules that could lead to employee discipline.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Provide the Union with the Company’s written
and verbal rules, the breach of which could lead to
employee discipline, as requested in the Union’s May
6 and November 29, 1993 letters.
(b) Post at its facility in Knoxville, Tennessee, cop-
ies of the attached notice marked ‘‘Appendix.’’6 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 10, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER STEPHENS, dissenting.
I agree with the judge that the Respondent did not
violate Section 8(a)(5) and (1) of the Act and that the
complaint should be dismissed. Therefore, I dissent.
I agree with my colleagues that the Respondent does
maintain specific written rules that could lead to dis-
cipline. Those rules are contained in the parties’ col-
lective-bargaining agreement (e.g., the rule regarding
loss of seniority for failing to provide an acceptable
excuse for failing to report to work on 3 consecutive
scheduled days), the Respondent’s safety manual (e.g.,
the facial hair rule, the rule requiring the presence of
two employees for the performance of certain work)
and the posted signs at the plant (e.g., the rules regard-
ing smoking, alcohol, drugs, and firearms on company
property). In addition to those specific rules, the Re-
spondent also maintains a general policy of progressive
discipline and a general policy that considers the total-
437PRAXAIR, INC.
1 As the judge stated, the Respondent asserted that it had proffered
the safety manual to the Union. In this regard, I note a colloquy be-
fore the judge in which the Respondent’s counsel asserted that the
manual had been offered to the Union before complaint was issued
in this case, and the counsel for the General Counsel conceded that
he was aware of that. Counsel for the General Counsel argued, how-
ever, that there were ‘‘other rules,’’ i.e., that the rules in the safety
manual ‘‘are not the only rules that the Employer has.’’ Consistent
with that implicit representation of what was urged as the basis for
the violation, the General Counsel in his brief to the Board does not
rely on any alleged delay in offering the safety manual to the Union.
It argues, instead, that the judge erred in failing to find that the Re-
spondent was ‘‘required to tell the Union what its unwritten, but via-
ble, work rules and policies are.’’
2 I also agree with the judge that Champ Corp., 291 NLRB 803,
878–889 (1988), enfd. 913 F.2d 639 (9th Cir. 1990), and Safeway
Stores, 252 NLRB 1323 (1980), enfd. 692 F.2d 953 (10th Cir. 1982)
are distinguishable. In Champ, the Board ordered the respondent to
provide the union with written descriptions of job duties of all em-
ployees, notwithstanding that the respondent argued that such written
descriptions did not exist. Unlike here, as the judge found in Champ,
those job duties existed in a concrete and observable form because
an agent of the respondent has compiled such descriptions in re-
sponse to a subpoena. Additionally, unlike here, in Safeway, the
Board required the respondent to furnish information that was al-
ready available from records in the respondent’s possession, permit-
ting the respondent to compile the information itself or grant access
to the union so it could compile the information.
1 Hereinafter the General Counsel.
2 All dates are 1993 unless otherwise indicated.
ity of circumstances in each given situation in deter-
mining whether the conduct in question requires any
discipline. Those specific written rules and that state-
ment of a general policy have been offered to the
Union.1
My colleagues find, however, that because other em-
ployee conduct not set forth in the written rules has re-
sulted in discipline, the Respondent necessarily main-
tains some uniform and definite work rules or policies
that it unlawfully refuses to supply to the Union. I dis-
agree. The situations that my colleagues have charac-
terized as work rules (e.g., an employee’s late arrival
at work, notifying the Respondent about leaving work
before the end of scheduled shift, obtaining permission
to arrive at work before a scheduled shift begins) are,
in my view, merely factors that might, under the Re-
spondent’s totality-of-the-circumstances approach, lead
to discipline depending on all of the attendant cir-
cumstances. These factors do not, in my view, rise to
the level of a ‘‘work rule.’’ Moreover, whatever judg-
ment might be passed on the Respondent’s apparently
arbitrary system of management, the fact remains that
the Union has not been able to gain a better system
at the bargaining table, and the Board has no authority
to order the Respondent to rationalize its system by
generating a set of ‘‘rules.’’ See H. K. Porter Co. v.
NLRB, 397 U.S. 99 (1970).
Accordingly, I find that the Respondent, by directing
the Union to the written rules contained in the parties’
collective-bargaining agreement, the safety manual,
and the posted signs around the plant, as well as in-
forming the Union of its general policies, adequately
provided the Union with the information it requested.
The Respondent thus did not violate the Act by failing
to generate and provide to the Union a set of written
work rules.2
Finally, I note that I would require the Respondent
to provide the Union, on request, any disciplinary
records that it may maintain on employees, such as the
records of the Harrell discharge or notations of rep-
rimands. I would consider that such records constitute
rules of a sort (i.e., in a given set of circumstances, the
Respondent took a definite, specific action). Here,
however, there appears to be no claim that the Re-
spondent has failed to turn over such documents.
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 provide our written and
verbal rules that can lead to employee discipline to
Teamsters Local Union No. 519.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL provide the Union with our written and
verbal rules, the breach of which can lead to employee
discipline, as requested in the Union’s May 6 and No-
vember 29, 1993 letters.
PRAXAIR, INC.
Victor McLemore, Esq.,1 for the General Counsel.
Josephine Miller, Esq., of Danbury, Connecticut, for the Re-
spondent.
Allen Anderson, Business Agent, Local 519, of Knoxville,
Tennessee, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT C. BATSON, Administrative Law Judge. This case
was tried before me at Knoxville, Tennessee, on May 4,
1994, on a charge filed December 21, 1993,2 by Teamsters
Local Union No. 519 (the Union) alleging that Praxair, Inc.
(Respondent or Employer) violated Section 8(a)(5) and (1) of
the Act by refusing on request to provide the Union with its
‘‘rules, written or verbal, which could lead to discipline of
employees and the progressive disciplinary steps for each
rule.’’ On February 3, 1994, the Regional Director for Re-
gion 10 of the National Labor Relations Board issued a com-
438 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The unit consists of 17 employees.
4 Exhibits offered by counsel for the General Counsel and received
into evidence are cited as G.C. Exh. and by Respondent as R. Exh.
plaint alleging that on or about November 29 the Union re-
quested Respondent provide it with Respondent’s rules, writ-
ten or verbal, that could lead to discipline of its employees
and the progressive steps for each of such rules. The com-
plaint alleges that the information requested by the Union
was necessary and relevant for the Union’s duty and respon-
sibility to represent the employees in the appropriate unit, in-
cluding the consideration and processing of grievances on
behalf of such employees, and that since on or about Novem-
ber 29 Respondent has failed and refused to bargain in good
faith with the Union as the exclusive bargaining representa-
tive of the employees in an appropriate unit, hereafter de-
scribed by refusing to furnish the Union with the information
in violation of Section 8(a)(5) and (1) of the National Labor
Relations Act (Act). The Respondent by its answer to the
complaint denies that the Union requested such information
and that the Respondent failed and refused to provide the in-
formation to the Union. The charge, complaint, and answer
were properly served on all parties.
On the entire record in this case, including my opportunity
to directly observe the witnesses while testifying under oath,
and their demeanor, and after considering the posthearing
briefs by counsel for General Counsel and the Respondent I
make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Praxair, Inc., has at all times material
been a Delaware corporation with an office and place of
business located at Knoxville, Tennessee, where it is engaged
in the sale and distribution of bottled gas. During the 12
months preceding the issuance of this complaint, which is
representative of all times material, Respondent sold and
shipped from its Knoxville, Tennessee operations finished
products valued in excess of $50,000 directly to customers
located outside the State of Tennessee. The complaint al-
leges, the answer admits, the evidence establishes, and I find
that at all times material Respondent has been an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
The complaint alleges, the answer admits, the evidence es-
tablishes, and I find that Teamsters Local No. 519 has been
at all times material a labor organization within the meaning
of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Since 1988 the Union, Teamsters Local Union No. 519,
has been recognized as the exclusive collecting-bargaining
representative of:
All hourly production and maintenance employees,
including truck drivers, employed at Respondent’s
Knoxville, Tennessee plant, excluding office and cleri-
cal employees, technical employees, professional em-
ployees, guards and supervisors as defined in the Act.3
This unit constitutes one appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b) of the
Act. As noted above, the Union has represented the employ-
ees in the above-described unit since 1988. The parties are
now operating under a collective-bargaining agreement that
by its terms is due to expire November 30, 1994.
On May 6 the Union by its business agent, Allen Ander-
son, wrote to Gary Fiorino, the plant manager of the Knox-
ville facility, requesting copies of Respondent’s disciplinary
steps and procedures describing the major and minor of-
fenses with respect to Respondent’s work rules. Allen stated
this request was made ‘‘due to problems that have been ex-
perienced with plant work rules, and due to unforeseen prob-
lems which may arise.’’ (G.C. Exh. 7.)4 Fiorino made no re-
sponse to this request. Anderson let the matter of the request
ride until sometime in October, approximately October 22, at
which time he called Fiorino and asked if they were going
to respond to his request of May 6. Fiorino told Anderson,
‘‘They didn’t have any work rules and they weren’t going
to send me a copy of any.’’ (Tr. pp. 26 and 27.)
By letter dated November 15, 1993, after the original
charge in this case was filed, Business Agent Anderson re-
ceived a response to his request from Tracy Guy of the Em-
ployer’s human resources department setting forth the Com-
pany’s position, the thrust of which was that except as cov-
ered in the collective-bargaining agreement the Company had
no written bargaining unit disciplinary policies. (G.C. Exh.
8):
Re: Disciplinary Policies
Dear Mr. Anderson:
You have requested copies of Praxair’s disciplinary
policies, apparently in the context of reviewing the
Company’s discipline of bargaining unit members for
excessive absenteeism or tardiness and excessive on-
the-job accidents. While this issue is one previously
discussed in contract negotiations, perhaps this written
confirmation of what you were then advised will put
the matter to rest.
Many of Praxair’s policies applicable to the bargain-
ing unit appear in our Contract. However, with the pos-
sible exception of the Substance Detection Program
which is part of our application for employment,
Praxair has no written bargaining unit disciplinary poli-
cies of the sort I understand you to be requesting,
meaning a statement or statements detailing various
rules together with the disciplinary penalties to be ap-
plied for their violation under various circumstances.
While Praxair generally applies a system of progressive
discipline, applying more severe discipline, up to and
including discharge as unacceptable performance or
conduct repeats, we also consider the severity of each
incident (e.g. accident resulting in minor injury vs. acci-
dent resulting in serious injury and property damage),
any aggravating or mitigating factors (e.g. intentional
misconduct; violation of known rules/practices vs. inex-
perience or inadequate training) and, if appropriate, the
employee’s work history in determining what discipline
is appropriate, such that either no formal discipline or
even discharge may result from even a single incident.
439PRAXAIR, INC.
5 The confusion appearing in record with respect to which party
made this proposal will be dealt with below. I find that it was made
by the Union and rejected by the Employer.
6 The Respondent says that loss of seniority is the same as termi-
nation. The Union does not dispute this.
7 Neither party offered the current collective-bargaining agreement
into evidence.
We recognize that Praxair’s responsibility is to pro-
vide an atmosphere of fair and impartial treatment for
all its employees. If we fail to discharge this respon-
sibility, employees have an effective means to voice
their concerns or disagreement through recourse to the
Contract’s grievance and arbitration process, with your
assistance.
Sincerely
/s/ Tracy Guy
Plant Manager Gary Fiorino testified that the Employer’s
safety manual contains some regulations, the violation of
which employees might be disciplined. (Tr. 15.) The Re-
spondent states that the safety manual has been proffered to
the Union.
On November 29 Anderson made a written request to John
B. Day, Respondent’s chief labor counsel, for ‘‘a copy of the
plant’s verbal rules reduced to writing and any written rules
which could lead to discipline. Also please send a copy of
the progressive steps for each of these rules.’’ (G.C. Exh. 9.)
By letter dated December 3 (G.C. Exh. 10), Day re-
sponded with the following:
Re: Knoxville Disciplinary Policies
Dear Allen:
I have and thank you for your November 29, 1993
letter, but will have to respectfully decline your request
that the Company generate a written set of disciplinary
rules. The Company’s disciplinary philosophy and prin-
ciples have already been accurately summarized in writ-
ing for you, in Tracy Guy’s November 15, 1993 letter
the receipt of which you acknowledge. As it stated,
Praxair does not have a comprehensive written set of
disciplinary rules at Knoxville or any other of its nu-
merous other unionized and non-union facilities. Nei-
ther our contract with Local 519 nor the National Labor
Relations Act obliges us to maintain or create one, and
we do not plan to do so.
You are, of course, free to raise the issue of whether
any given employee had an adequate understanding of
the basis of any discipline, itself, may be argued there.
You would also be free, although I suspect only in full
contract negotiations, to seek the Company’s agreement
to negotiate a set of disciplinary rules. Absent such an
agreement, however, the Company will continue its un-
broken historical practice, at Knoxville and elsewhere,
of proceeding without a schedule of discipline, permit-
ting the consideration of all relevant factors in any par-
ticular case.
Finally, while I am always available to consider any
inquiry you may have with respect to the Company’s
position on legal matters, we encourage you to direct
all routine communications with the Company through
local management or the assigned Human Resources
representative, in this case Tracy Guy. Your coopera-
tion and assistance in this matter is greatly appreciated.
Sincerely,
/s/ John Baldwin Day
During negotiations for a second contract in 1991 the
Union proposed that an article relating to discipline and dis-
charge be incorporated into the contract as article IX, sec-
tions 1, 2, and 3 (R. Exh. 1.)5 After the new collective-bar-
gaining agreement became effective the Respondent issued
several written reprimands to several employees that appar-
ently triggered the Union to seek the information sought
here. On February 4, 1992, Supervisor Rick Davis issued a
written reprimand to employee Marcus Westfield (G.C. Exh.
3) for violation of the ‘‘facial hair program’’ and on Feb-
ruary 17, 1992, issued a similar reprimand to employee
Freddy Holloway (G.C. Exh. 4) for the same reason. On June
7, 1993, Davis issued a second reprimand to Westfield (G.C.
Exh. 2) for violation of the shaving policy.
The Respondent’s facial hair policy is written in its safety
manual and is required by OSHA 1910.134 (respiratory pol-
icy). The reason for this is that its employees use respirators
and must be clean shaven in order that the respirator will
seal.
On May 5, 1993, Davis issued a written reprimand and a
3-day suspension to employee Bill Cross for having two
motor vehicle accidents in a company vehicle. Davis writes
in the reprimand, ‘‘Investigation prove that they could have
been avoided if proper technique were used.’’
Another incident perhaps giving rise to the Union’s re-
quest was the arbitration of the discharge of employee Danny
Harrell in the summer or fall 1991. The testimony given at
the arbitration and the Employer’s brief to the arbitration
panel (G.C. Exh. 6), as well as testimony by Plant Manager
Gary Fiorino, demonstrates that the Employer had numerous
verbal rules regarding employee conduct that might lead to
discipline.
For example, verbal rules that had been given to employ-
ees over the years to notify their supervisor if they leave
work prior to the end of their scheduled shift. (G.C. Exh. 6,
p. 6.) The collective-bargaining agreement article IV, section
5(e) provides that an employee shall lose seniority6 if ‘‘The
employee fails to report for work for three (3) consecutive
days of that employee’s work schedule and does not have an
excuse acceptable to the Employer.’’ (G.C. Exh. 6, p. 2.) The
company policy that employees call in if they are going to
be absent, however, is apparently a verbal one.7 The Em-
ployer’s safety manual requires that there be at least two em-
ployees when working (at least on some jobs). There is a
verbal rule, however, that if one employee shows up for
work and another does not that employee must notify man-
agement. (Tr. 14.)
Plant Manager Fiorino testified in response to the General
Counsel’s questions that written rules consisted of signs post-
ed in the plant with respect to ‘‘smoking,’’ ‘‘alcohol,’’
‘‘drugs,’’ and ‘‘firearms’’ on company property, but that vio-
lations of these were handled on a case-by-case basis and a
violation would not necessarily result in discipline, but what-
ever action was taken would depend on all the cir-
cumstances. Likewise the written rules in the safety manual,
only two of which came to light here, facial hair and the
presence of two people in the plant when performing certain
work, but again discipline for a violation of these rules
440 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Employer’s counsel had Plant Manger Fiorino identify R. Exh.
1 as a proposal made by the Employer in response to a union pro-
posal on discipline and discharge (Tr. p. 65.) On this identification
both the General Counsel and Business Agent Anderson objected
that R. Exh. 1 was the union’s proposal. During an off-the-record
discussion the Union offered to accept R. Exh. 1 in settlement of
this case saying ‘‘this is exactly what we want.’’ (Tr. 66–69.) During
voir dire by the General Counsel, Fiorino began to waiver in his
identification admitting that he was not sure, and if Anderson said
it was the Union’s proposal he could not dispute it. (Tr. 67.) When
the Union offered to accept R. Exh. 1 in settlement of the case Em-
ployer’s counsel began to hedge saying neither she nor Fiorino had
the authority to negotiate or enter into a settlement agreement. Coun-
sel argued that R. Exh. 1 was part of a package offered by the Em-
ployer and she had no authority to accept it now. (Tr. p. 82.) As
a matter of fact it was not a proposal ‘‘package’’ or otherwise made
by Respondent and by this time counsel was well aware of that
fact—or at least that it would require more investigation. Counsel
chose to ignore this, however, and did not pusue it in posttrial brief.
This footnote would not be necesary had counsel handled this inci-
dent as required by the Code of Professional Conduct. An attorney
who has made an honest but mistaken representation to a court on
learning of such mistake has a professional duty to immediately cor-
rect the mistake and apoligize to the court. Here counsel did neither.
would depend on all the circumstances. The same is true
with sleeping on the job and Fiorino gave two examples
when no discipline was taken. One, he testified he observed
an employee performing a monotonous job asleep and
Fiorino merely made a sound and spoke to the employee
waking him up. Fiorino says the employee was a good one
and being caught asleep on the job was enough embarrass-
ment—no discipline was taken. Another employee having a
problem staying awake on the job was not disciplined when
Firorino found that he had a new baby at home that was
keeping him up nights. He further testified that tardiness,
theft of company property, intoxication, or fighting on the
job would be handled on a case-by-case basis. (Tr. 14–16.)
During negotiations for the current collective-bargaining
agreement on August 28, 1991, the Union made a proposal
labeled ‘‘Art. IX Discipline—Discharge’’ that consisted of
about one and a half handwritten pages addressing a minimal
number of employee offenses and proposing the discipline
therefor. (R. Exh. 1.) According to Local Business Agent
Allen Anderson the employer rejected it and made their final
offer to the Union that the Union accepted.8
Analysis and Conclusions
The Board’s statutory authority with respect to the issue
raised here is limited to compelling an employer to bargain
in good faith with the duly designated representative of a
majority of its employees over certain mandatory subjects of
bargaining of which discipline and discharge is one. If the
parties bargain over nonmandatory subjects such bargaining
must also be in good faith. The Board has no authority and
is expressly prohibited from dictating any terms of an agree-
ment or to compel either party to make concessions or in-
clude any particular language on any subject. It is only when
the parties have reached agreement that the Board has the au-
thority to compel them to reduce such agreement to writing
and execute it by signing it.
The Board also has the authority to order the employer to
provide the union with certain information on request that is
necessary and relevant to the union’s duties and responsibil-
ities under Section 8(a)(5) to fulfill its obligations as the stat-
utory representative of the unit employees.
Here the General Counsel and the Union are attempting to
have the Board do that which it is prohibited from doing
under the guise of a request for information to aid the Union
in performing its duty as representative of the employees.
The Union recognized that this subject was one that had to
be negotiated, hence its proposal (R. Exh. 1).
This is the position taken by Respondent and, although cit-
ing no cases or other authority, it may feel that because this
principle is so well settled it is unnecessary to do so.
The General Counsel correctly cites the standard for deter-
mining relevance of information sought by a bargaining
agent as set forth in Westinghouse Corp., 239 NLRB 106
(1978). In the instant case we need not deal with that stand-
ard of relevance because here the Board is being asked to
order Respondent to compile and reduce to writing certain
employee conduct for which an employee might be dis-
ciplined and the progressive steps in determining that dis-
cipline. Although it might be argued that such written data
would be helpful to both the Employer and the Union, I have
no authority to order it. To do so would have the effect of
forcing the Employer to amend an agreed-on contract.
The General Counsel cites as precedent for what he seeks
in Champ Corp., 291 NLRB 803 (1988), and Safeway Stores,
252 NLRB 1323 (1980). These cases are inapposite on their
face. In Champ, there were numerous unfair labor practices
and a strike in 1979 and 1980. In its 1988 Champ Corp. de-
cision, in fashioning a remedy, the Board said at 808–809:
In view of the long duration of the strike, commenc-
ing on October 15, 1979, and ending April 7, 1980, the
extremely long period since the end of the strike, and
the numerous unfair labor practices of Champ Corpora-
tion that prolonged the strike, certain special remedies
are necessary to restore, insofar as practicable, the sta-
tus quo ante. In all probability, many of the strikers
have since taken employment with other employers and
many have out of necessity moved to other locations.
They should be accorded full and equitable opportunity
to consider present offers of reinstatement free of any
fears of the recurrence of the unfair labor practice
against them.
Having said that the Board, id. at 810, ordered the Re-
spondent to inter alia:
(g) Furnish the Union a description of the job duties
performed by all unit employees for the preceding 12-
month period and the date of layoff of all unit employ-
ees that have been laid off during the preceding 12-
month period.
Thus it is clear the Board’s Order here requiring the Re-
spondent to furnish this information arose out of its authority
to fashion an appropriate remedial order.
With respect to Safeway the Board found that the Union’s
request for ‘‘certain information in order to ascertain whether
the applicable discrimination provision of the parties’ con-
tract was being complied with in a number of pending mat-
ters involving the statutes and orders described in its re-
quest.’’
441PRAXAIR, INC.
9 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.
The contract contained a ‘‘no-discrimination clause.’’ The
Union requested information about the number of male and
female employees, Blacks, handicapped, and Indian by race,
sex, Spanish surname, and also their seniority. Also all pro-
motions and upgrades for a 12-month period, the number of
persons hired, and et cetera. The Respondent was ordered to
furnish that information or make it available to the Union.
Here the Union was not seeking to have the employer gen-
erate something not in its possession and was clearly for the
purpose of administering the ‘‘no-discrimination clause’’ in
the contract.
The Board clearly does not have the authority to order the
Employer to amend the contract by generating the informa-
tion sought and furnishing it to the Union. I shall dismiss the
complaint in its entirety.
CONCLUSIONS OF LAW
1. Praxair, Inc., is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Respondent did not as alleged violate Section
8(a)(1) and (5) of the Act.
On these findings of fact and conclusions of law and on
the entire record I issue the following9
ORDER
The complaint is dismissed in its entirety.