Rohm and Haas Texas Incorporated, a subsidiary of The Dow Chemical Company

National Labor Relations Board - Administrative Judge Opinions

Mar 1, 2019

16-CA-218857 (N.L.R.B. Mar. 1, 2019)

JD–22–19
Deerfield Park, TX
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ROHM AND HAAS TEXAS INCORPORATED, A
SUBSIDIARY OF DOW CHEMICAL COMPANY
and CASE 16-CA-218857
UNITED STEELWORKERS OF AMERICA,
AFL-CIO-CLC
Laurie Monahan Duggan, Esq., for the General Counsel.
Christopher C. Antone and Joseph G. Galagaza, Esqs.
(Jackson Lewis P.C.), for the Respondent.
Jay F. Gibson, Esq. (The Dow Chemical Company),
for the Respondent.
DECISION
Statement of the Case
Ira Sandron, Administrative Law Judge. This case is before me on an August 29,
2018 complaint and notice of hearing (the complaint) that stems from unfair labor practice
charges that United Steelworkers of America, AFL–CIO–CLC (the Union) filed against
Rohm and Haas Texas Incorporated, a subsidiary of Dow Chemical Company (the
Respondent or the Company).
I conducted a trial in Houston, Texas, on December 17, 2018, at which I afforded the
parties full opportunity to be heard, to examine and cross-examine the one witness, and to
introduce evidence.
Issue
Did the Respondent fail and refuse to furnish the Union with necessary and relevant
information that it requested in connection with a grievance over staffing levels at the
Respondent’s Deer Park, Texas facility (the facility) from August 22 through September 3,
2017,1 due to Hurricane/Tropical Storm/Tropical Depression Harvey (Hurricane Harvey), and

1 All dates hereinafter occurred in 2017 unless otherwise indicated.
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2
by its unreasonably delay in informing the Union that certain requested documents did not
exist?
The Evidence
5
The parties stipulated most facts and documents (Jt. Exhs. 1–18). Both the General
Counsel and the Respondent submitted additional documents, and the General Counsel called
one witness, Hank Niscavits (Niscavits), the union chairman at the facility. The Respondent
has not argued against his credibility, and I have no reason to doubt the reliability of his
testimony. Accordingly, I credit him.10
Facts
I find as follows based on the entire record, including testimony, documents, written
and oral stipulations, and the thoughtful posttrial briefs that the General Counsel and the 15
Respondent filed.
At all material times, the Respondent has been a corporation with an office and place
of business at the facility, engaged in the refining and nonretail sale of petroleum products.
The Respondent admits Board jurisdiction as alleged in the complaint, and I so find. 20
The facility produces chemicals. At the facility, at all times relevant, (1) the Company
has recognized the Union as the collective-bargaining representative of hourly control
laboratory, maintenance, utilities, and production employees; (2) the parties’ June 14, 2013–
March 5, 2019 collective-bargaining agreement (Jt. Exh. 1A) was in effect; and (3) the 25
Company has maintained a policy entitled, “Deer Park Operations Maximum Allowable
Work Hours and Days Guidelines” (the “fatigue policy”) (Jt. Exh. 2). No party has disputed
the finding of the arbitrator in a 2014 award that in 2010, the Company proposed, and the
Company and the Union negotiated, the fatigue policy (GC Exh. 6 at 2).
30
Relevant provisions of the collective-bargaining agreement are:
Articles V and VI set out the grievance-arbitration procedure, providing for
four steps and then referral to arbitration.
35
Article XII, the management-rights clause, provides that the Company has the
right to, inter alia, plan, control, and revise plants operations; assign work to
employees; and determine the means, methods, processes, and schedules of
production.
40
Article XVII, safety and health, provides that the Company will continue all
reasonable precautions for safeguarding the health and safety of its employees and that
the parties recognize their mutual obligations to prevent, correct, and eliminate all
unhealthy and unsafe working conditions and practices.
45
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3
Article XXI is a “zipper clause,” stating that all agreements not specifically set
out in the CBA or referenced in Schedule E expire as of the effective date of the CBA.
The fatigue policy is not mentioned in the CBA or listed in Schedule E.
The purpose of the fatigue policy is to provide “reasonable assurance that the safety 5
and health of employees [and others] are not adversely affected because of fatigue caused by
excessive work hours.” The Exceptions provision states that approval to work beyond the
limits described within this guideline will be considered appropriate only when stopping work
is reasonably likely to cause an emergency health and safety–related incident or non–
compliance with governmental regulations. The provision further states that “[b]usiness 10
criticality is not justification for extending work hours beyond the described limits.” One
cited example of appropriate exceptions is hurricane duty. The policy goes on to describe
maximum consecutive hours of work and maximum consecutive days of work.
On August 19, Hurricane Harvey entered the Caribbean as a tropic storm; became a 15
category 1 hurricane on August 24; and late on August 25, made initial landfall at San Jose
Island, Texas, approximately 158 miles away from the facility.
At all times during Hurricane Harvey in late August and early September, the
Company kept operations at the facility running with limited staffing. On August 31, the 20
Union filed Grievance 17-12 (Jt. Exh. 3; see also R. Exh. 2). The grievance contended that
from on about August 22 to 30, the Company violated the negotiated fatigue policy and the
safety and health provision in the CBA (article XVII) by placing employees in an unsafe
condition when it made the decision to operate with limited available staff.
25
On September 7, Niscavits attached an amended second-step grievance concerning
violations of the negotiated fatigue agreement and asked that the grievance be moved to the
fourth step (Jt. Exh. 12).
On September 19, pursuant to the grievance, Niscavits mailed and emailed Human 30
Resources (HR) Manager Ray Stephens (Stephens) 11 written requests for information (RFIs)
(Jt. Exh. 4; see also Jt. Exh. 13, 14), five of which included the following, all for the period
from August 22 through September 3 and regarding Hurricane Harvey:
(2) The names of all leaders and other participants who were part of the 35
emergency operations center (EOC) interactions that had potential impact for the
facility and its employees, as well as the EOC sign-in list.
(3) All email and other communications that occurred between the above
individuals, including communications related to proper employee staffing to safely 40
operate the facility’s operations.
(4) All email and other communications between Site Leader Jeff Garry
(Garry) and any and all participants of the EOC that had potential impact for the
facility and its employees, including communications related to proper employee 45
staffing to safely operate the facility.
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(5) All communications between Garry and business leaders that had
potential impact of the facility and its employees, including communications related to
proper employee staffing to safely operate the facility.
5
(11) All email communications from plant leaders and/or operations leaders
sent to hourly employees that had potential impact for the facility and its employees,
including copies of communications related to proper staffing to safely operate the
facility.
10
On October 6, Stephens responded to the Union’s information requests (Jt. Exhs. 5,
15),2 providing a more comprehensive response than in his September 26 response (GC Exh.
7). As to requests 2–5, the requests at issue, he responded, “This question/information is not
pertinent to the grievance and will not be provided.” On request 11, he stated, “This
information is easily accessible in your own email inbox or your memberships[sic ] inbox” 15
and would not be provided.
On October 12 and 13, Niscavits replied to the October 6 response (Jt. Exhs. 6, 7,
8(a)). Regarding requests 2–5, he stated that the information was presumptively relevant; was
the same information that the Company had provided in response to a previous, similar 20
grievance (14-01); and was necessary for several reasons, including enabling the Union to
know all of the facts of the situation and the people involved in making decisions that led to
the grievance, and to verify statements made by the Company. Niscavits attached the RFI
from Grievance 14-01 and the Company’s responses.
25
Niscavits also clarified request 11 as referring to separate communications sent from
plant leaders and/or operations leaders to hourly employees in their departments that outlined
staffing plans and plans to operate or shut down during the Hurricane Harvey period: “These
communications are solely owned by the Company and the Union has no access to these as
described.” He also included text communications in the request (see also R. Exh. 3).30
Stephens advised Niscavits on October 17 that the Company was working on the
information requests but needed additional time (Jt. Exh. 16). Stephens responded to the
requests on November 2 (Jt. Exh. 8). He provided the names requested in request 2 but not
the EOC sign-in list. As to request 11, he repeated that those emails were in the possession of 35
the Union’s membership and would not be provided.
The parties had a fourth-step grievance meeting on April 3, 2018 (see Jt. Exh. 18).
Three days later, Union sub-District Director Ben Lilienfeld renewed the requests for the
information that Stephens had not provided (Jt. Exh. 9). Daniel Negrotto, the Company’s HR 40
Labor Relations representative, replied on April 13 (Jt. Exh. 10). He repeated the responses
that Stephens had given. However, he also stated with respect to request 2 that “EOC sign in
lists do not exist.”

2 In their written communications, Company responses are in red; Niscavits’ in black or blue.
JD–22–19
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On September 14, 2018, the Union requested arbitration of Grievance 17–12 and
requested that the its processing be abated pending resolution of the instant charges (Jt. Exh.
11).
General Counsel’s Exhibit 3 is the Union’s August 2014 request for information for 5
Grievance 14–01, which related to alleged violation of the fatigue policy by requiring
employees to remain on site for a 24-hour lock-in during a predicted severe freeze without
receiving hurricane pay (see GC Exhs. 5, 6). One of the RFIs was for “all e-mail
communications between the Site Leader Susan Lewis and the assigned Site Emergency
Manager for the EOC, and all participants of the EOC” activated from January 27–29, 2014. 10
The Company provided this information (GC Exh. 4, excluding p. 1; Tr. 34–36). The Union
used those emails in its posthearing arbitration brief (GC Exh. 5 at 4). The arbitrator, in
finding in the Union’s favor in his award of April 3, 2015, referenced written communication
between Lewis and her managers (GC Exh. 6 at 6).
15
The arbitrator determined that the Company could not implement the “lock-in” unless
it invoked the provisions of the Hurricane Policy, because the fatigue policy prohibited a 24-
hour work schedule without some emergency basis. He stated that the policy, negotiated in
2010, established a limitation on work hours, prohibiting working greater than 16 hours in a
24-hour period, with only a few exceptions, including hurricane (weather) emergency.20
Respondent’s Exhibit 3 is an October 11 email from Union Committeeman Charles
Cowber to Niscavits, including an August 24 email from a supervisor to his team members
that described the operating procedures that were being put into effect during Harvey.
25
Analysis and Conclusions
Failure to Provide Requested Information
An employer is obliged to supply information requested by a collective-bargaining 30
representative that is relevant and necessary to the latter’s performance of its responsibilities
to the employees it represents. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967); NLRB v.
Truitt Mfg. Co., 351 U.S. 149 (1956). To trigger this obligation, the requested information
need only be potentially relevant to the issues for which it is sought. Pennsylvania Power &
Light Co., 301 NLRB 1104, 1104–1105 (1991); Conrock Co., 263 NLRB 1293, 1294 (1982). 35
Requests for information concerning the terms and conditions of bargaining unit
employees are presumptively relevant. Postal Service, 359 NLRB 56, 56 (2012); LBT, Inc.,
339 NLRB 504, 505 (2003); Uniontown County Market, 326 NLRB 1069, 1071 (1998). An
employer must furnish presumptively relevant information on request unless it establishes 40
legitimate affirmative defenses to production. Detroit Newspaper Agency, 317 NLRB 1071,
1071 (1995).
Since a bargaining representative’s responsibilities include the administration of the
collective-bargaining agreement and the processing and evaluating of grievances thereunder, 45
an employer is obliged to provide information that is requested for the processing of
JD–22–19
6
grievances or potential grievances. Michigan Bell Telephone Co., 367 NLRB No. 74 (2019);
Acme Industrial, supra at 436; Postal Service, 337 NLRB 820, 822 (2002); Beth Abraham
Health Services, 332 NLRB 1234, 1234 (2000).
It is noteworthy that the arbitrator in 2014 referenced internal management 5
communications in deciding the merits of a grievance involving interpretation of the fatigue
policy, reflecting the potential relevance of that information in the instant matter.
The Respondent’s brief raises a number of affirmative defenses to production, as
follows. Although creative, they are not persuasive.10
The Respondent first contends that the decision whether or not to operate the plant
was not subject to mandatory bargaining inasmuch as it was “at the core of entrepreneurial
control,” citing First National Maintenance, 452 U.S. 666, 676–678 (1981); therefore, the
decision was not subject to mandatory bargaining, and the Respondent was not obliged to 15
respond to RFIs relating to it. However, that case involved an employer’s decision to
permanently shut down part of its business, not a determination of how to temporarily conduct
operations during a hurricane emergency, as was the situation here. In any event, the Union
was not seeking participation in the actual making of the decision to continue operations and
with what staffing levels. Instead, the Union was seeking information in connection with a 20
grievance that included the issue of the Company’s motivations under a negotiated procedure.
The Respondent also cites Pieper Electric, Inc., 339 NLRB at 1232, 1235 (2003), for
the above proposition. In Pieper, however, the Board held that an optional stock purchase
program in which the employer made no matching contributions was not a mandatory subject 25
of bargaining because employees received no emolument of value; accordingly, it did not
constitute “wages, hours, or other terms and conditions of employment,” and the employer
had no obligation to furnish information thereon. Here, in contrast, the RFIs clearly pertained
to a grievance over wages, hours, and other terms and conditions of employment. See NTN
Bower Corp., 356 NLRB 1072 (2011). 30
The Respondent cites Berbiglia, Inc., 233 NLRB 1476, 1495 (1977), for the
proposition that even if an RFI relates in some way to a mandatory subject of bargaining, a
party to a collective-bargaining relationship is not entitled to information relating to the
other’s party’s deliberative process regarding it. However, that case is inapposite. It did not 35
involve an RFI pertaining to a grievance but to an employer’s subpoena duces tecum seeking,
inter alia, internal communications between the union and its members going to whether a
strike was an unfair labor practice one, as the General Counsel contended. The
Administrative Law Judge noted the quasi-fiduciary relationship between a union and its
members and that negotiations were pending.40
The Respondent further argues that the Union cannot complain about the Company’s
application of the Fatigue Policy because (1) the Union waived such right by agreeing to the
management-rights clause in the CBA, and (2) the policy expired when the new CBA went
into effect since it was not included among the agreements recited in the “zipper clause.” 45
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Waiver is not lightly inferred and must be “clear and unmistakable.” Weyerhaeuser
NR Co., 366 NLRB No. 169, slip op. at 2 (2018), citing Metropolitan Edison Co. v. NLRB,
460 U.S. 693,709 (1983); Georgia Power Co., 325 NLRB 420, 420–421 (1998), enfd. 176
F.3d 494 (11th Cir. 1999), cert. denied 528 U.S. 1061 (1999). Thus, the part asserting waiver
must establish that the parties “unequivocally and specifically express[ed] their mutual 5
intention to permit unilateral employer action with respect to a particular employment term,
notwithstanding the statutory duty to bargain that would otherwise apply.” Weyerhaeuser,
ibid, citing Provena St. Joseph Medical Center, 350 NLRB 808, 811 (2007). Moreover, the
party asserting waiver bears the burden of proof. Ibid; TCI of New York, 301 NLRB 822,
824(1991).10
The Respondent’s arguments fail to meet the test for finding a waiver. Regardless of
those contractual provisions, the Respondent stipulated that at all times material, the
negotiated fatigue policy has been in effect. Moreover, the 2014 grievance concerned the
Company’s conduct on January 28 and 29, 2014—after the date that the current CBA went 15
into effect—and the Company did not dispute the applicability of the fatigue policy. Thus,
the fatigue policy continued in effect after the management’s rights and zipper clauses were
negotiated and made effective in 2013.
Finally, the Respondent argues that the Union already had or could have just as easily 20
gathered from unit employees or union stewards any emails that employees had received from
management and that the Respondent therefore had no obligation to provide them. The
Company points to Niscavits’ receipt from a union committeeman an email from a supervisor
to his team members. However, it is well settled Board law that the fact a union might have
been able to obtain the information through other sources, including its own stewards and 25
employees, does not defeat the union’s right to obtain such information from the Respondent.
See, e.g., Illinois-American Water Co., 296 NLRB 715 (1989), enfd. 933 F.2d 1368 (7th Cir.
1991); Interstate Food Processing, 283 NLRB 303, 305 (1987); Bel-Air Bowl, Inc., 247
NLRB 6, 6 (1980). Indeed, to hold otherwise would be to shift the burden of obtaining the
information to the union, thereby undermining the purpose behind requiring employers to 30
provide presumptively relevant information. Moreover, the Respondent could not say that the
Union in had fact received from employees any and all such communications from
management—the purpose behind the request.
In sum, I conclude that the Respondent violated section 8(a)(5) and (1) by failing and 35
refusing to furnish the Union with the information that it requested in items 3, 4, 5, and 11.
Unreasonable Delay
A well-established corollary to the requirement that an employer must provide 40
relevant information to a union in a reasonably timely manner is that an employer must timely
respond to such a request when the employer believes it has grounds for not providing that
information. Michigan Bell, above at slip op. 4, citing Columbia University, 298 NLRB 941,
945 (1990). Thus, an unreasonable delay in furnishing such information is as much of a
violation of Section 8(a)(5) of the Act as a refusal to furnish the information at all. Valley 45
Inventory Service, 295 NLRB 1163, 1166 (1989). In determining whether an employer has
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unlawfully delayed responding to an information request, the Board considers the “totality of
the pertinent circumstances.” Michigan Bell, above at slip op. 4 (7-week delay without
justification found unreasonable), citing Endo Painting Service, 360 NLRB 485, 485 (2014).
Here, the Union originally requested the EOC sign-in lists in its September 19, 2017 5
RFI, and continued to reiterate that request, yet the Respondent did not advise the Union until
April 12, 2018—almost 7 months later—that no such information existed. The Respondent
offered no explanation to the Union, at trial, or in its brief, of why it took so long to determine
the nonexistence of those documents. In the absence thereof, I conclude that the Respondent
unreasonably delayed in providing its response of nonexistence of documents to the Union,10
and thereby violated Section 8(a)(5) and (1).
Conclusions of Law
1. The Respondent is an employer engaged in commerce within the meaning of 15
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
20
3. By failing and refusing to furnish the Union with information that it requested
that was relevant and necessary for processing its grievance over the Respondent’s decision to
keep operations running at the facility with limited staff, the Respondent engaged in unfair
labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act and
violated Section 8(a)(5) and (1) of the Act.25
4. By its unreasonable delay in furnishing the Union with a response that no
documents were in existence in response to information that it requested that was relevant and
necessary for processing the above grievance, the Respondent engaged in unfair labor
practices affecting commerce within the meaning of Section 2(6) and (7) of the Act and 30
violated Section 8(a)(5) and (1) of the Act.
Remedy
Because I have found that the Respondent has engaged in certain unfair labor 35
practices, I find that it must be ordered to cease and desist and to take certain affirmative
action designed to effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended340

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
JD–22–19
9
ORDER
The Respondent, Rohm and Haas Texas Incorporated, a subsidiary of Dow Chemical
Company, Deerfield Park, Texas, its officers, agents, successors, and assigns, shall
5
1. Cease and desist from
(a) Failing and refusing to furnish the Union with information that it
requests that is relevant and necessary for it to process grievances on behalf of unit
employees.10
(b) Unreasonably delaying responding to the Union’s request for
information that is relevant and necessary for it to process grievances on behalf of unit
employees.
15
(c) 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.20
(a) Provide the Union with information that it requested concerning
internal management relating to staffing levels at the facility during Hurricane Harvey, in
connection with Grievance 17–12.
25
(b) Within 14 days after service by the Region, post at its facility in
Deerfield Park, Texas, copies of the attached notice marked “Appendix.”4 Copies of the
notice, on forms provided by the Regional Director for Region 16, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and maintained for
60 consecutive days in conspicuous places including all places where notices to employees 30
are customarily posted. In addition to physical posting of paper notices, notices shall be
distributed electronically, such as by email, posting on an intranet or an internet set, and/or
other electronic means, if the Respondent customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. In the event that, during the pendency 35
of these proceedings, the Respondent has gone out of business or closed the facility involved
in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees employed by the Respondent at any
time since September 19, 2017.
40

4 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.”
JD–22–19
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(c) Within 21 days after service by the Region, file with the Regional
Director a sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.
Dated, Washington, D.C. March 1, 20195
10
Ira Sandron
Administrative Law Judge
15
Q50
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 Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
United Steelworkers of America, AFL–CIO–CLC (the Union) represents a unit of our hourly
control laboratory, maintenance, utilities, and production employees.
WE WILL NOT fail and refuse to provide the Union with information that it requests that is
relevant and necessary for it to fulfill its functions as your collective-bargaining
representative, including the processing of grievances.
WE WILL NOT unreasonably delay in responding to the Union’s requests for information
that is relevant and necessary for it to fulfill its functions as your collective-bargaining
representative, including the processing of grievances.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of your rights under Section 7 of the Act, as set forth at the top of this notice.
WE WILL provide the Union with information that it requested concerning internal
management communications relating to staffing levels during Hurricane Harvey, in
connection with Grievance 17–12.
ROHM AND HAAS TEXAS INCORPORATED, A
SUBSIDIARY OF DOW CHEMICAL COMPANY
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how
to file a charge or election petition, you may speak confidentially to any agent with the
Board’s Regional Office set forth below. You may also obtain information from the Board’s
website: www.nlrb.gov.
819 Taylor Street, Room 8A24, Fort Worth, TX 76102-6178
(817) 978-2921, Hours: 8:15 a.m. to 4:45 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE
DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY
ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER, (682) 703-7489.