Southern California Gas Co.

National Labor Relations Board - Board Decisions

Mar 30, 1995

316 N.L.R.B. 979 (N.L.R.B. 1995)

979
316 NLRB No. 152
SOUTHERN CALIFORNIA GAS CO.
1 Originally filed in Region 21, the case’s first docket number was
Case 21–CA–29398. It was subsequently transferred to Region 31
and given its current docket number.
2 All dates are 1993, unless otherwise indicated.
3 According to the collective-bargaining contract, Utility Workers
Union of America, AFL–CIO, and International Chemical Workers
Union, AFL–CIO are the joint representative of the employees and
enjoy 9(a) status. They appear to have delegated day-to-day adminis-
tration of the agreement to various locals, including the Charging
Party, Local 132.
Southern California Gas Company and Utility
Workers Union of America, AFL–CIO, Local
132. Case 31–CA–20615
March 30, 1995
DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
On December 2, 1994, Administrative Law Judge
James M. Kennedy issued the attached decision. The
General Counsel and Charging Party filed exceptions
and supporting briefs, and the Respondent filed an-
swering briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Ann Cronin-Oizumi, for the General Counsel.
David B. Reeves, of Los Angeles, California, for the Re-
spondent.
Ira L. Gottleib (Taylor Roth, Bush & Geffner), of Los Ange-
les, California, for the Charging Party; Jay D. Roth and
Matthew P. Polesetsky on brief.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
was tried in Los Angeles, California, on September 20–21,
1994, upon a complaint issued by the Regional Director for
Region 31 of the National Labor Relations Board on June
24, 1994. It is based on an unfair labor practice charge1 filed
on May 21, 1993,2 by Utility Workers Union of America,
AFL–CIO, Local 132 (whose parent Union, Utility Workers
Union of America, AFL–CIO, together with its partner, Inter-
national Chemical Workers Union AFL–CIO, are collectively
called the Union). The complaint alleges that Southern Cali-
fornia Gas Company (Respondent) has engaged in certain
violations of Section 8(a)(5) and (1) of the National Labor
Relations Act (the Act).
Issues
The principal issue presented by this complaint is whether
or not Respondent, in breach of the good-faith bargaining ob-
ligation, directly dealt with bargaining unit employees re-
garding mandatory subjects of bargaining, thereby bypassing
the Union and undermining its status as the exclusive collec-
tive-bargaining representative of the employees in the bar-
gaining unit. The General Counsel also contends that this
constitutes an unlawful unilateral change in working condi-
tions. Respondent denies such conduct, asserting that its
communication with employees was simply a data gathering
process having little, if any, bearing on the collective-bar-
gaining relationship. It also observes that the data being col-
lected does not qualify as a mandatory subject of bargaining.
The parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to orally argue, and to file briefs. All parties have
filed briefs which have been carefully considered. Based on
the entire record of the case, as well as my observation of
the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a California corporation, is headquartered in
Los Angeles, where it operates a public utility, i.e., the gen-
eration and distribution of natural gas throughout Southern
California. It admits that it annually purchases and receives
goods valued in excess of $50,000 from sources outside the
State and it further admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. LABOR ORGANIZATION
The parties have stipulated that the Union is a labor orga-
nization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Activity Value Analysis
As is common with a large public utility such as this, Re-
spondent’s facilities are spread through a wide geographic
area, constituting many buildings, properties, and construc-
tion sites. One of its operational components is known as the
engineering & operating support department (E&OS). The
approximately 450 persons who work in that department are
likewise spread around the Los Angeles area. Insofar as that
department is concerned, the Union’s representational breadth
is more narrow. It represents 173 of the E&OS employees,
only about one-third of the department. The bargaining unit
to which those 173 belong is huge, however, covering about
6000 employees, amorphously extending into many other de-
partments, and divers locations. Although the Union’s 9(a)
status is historic3 and goes back many years, it is not a unit
which lends itself to an easy, shorthand, description. The col-
lective-bargaining contract does so only by reference to a
myriad of job classifications covering a wide range of tasks.
These range from janitorial to clerical, from customer rela-
tions to line and street repair, from meter technicians to auto
980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Misspelled ‘‘Stuart’’ in the stipulation.
5 In fact, both are corporate vice presidents.
6 Another unit was the communications group; its duty did not in-
clude data collection or idea generation. Its duty was to keep all the
AVA participants informed about its progress and provide informa-
tion about the program. This was accomplished through the frequent
publication of a flyer called the Update. It was authored by Cheryl
Raine, the communications unit leader.
mechanics and from pipeline mapping to appliance service.
E&OS is a part of the headquarters division and its purpose
is to provide various types of support to all the other divi-
sions and their departments. A complete list of the tasks per-
formed by the organized portion of the E&OS department is
found in the back of the collective-bargaining contract.
Due to its perception that deregulation was forcing it to
become more competitive, Respondent’s management de-
cided sometime in early 1993 to embark upon a ‘‘re-inven-
tion’’ program, something tailored to its role as a public util-
ity, but in ordinary terms, a cost-cutting effort. Yet, due to
the sheer size of the business, management had no easy
means of determining where beneficial cuts could be made.
Accordingly it embarked on a program known as the ‘‘Activ-
ity Value Analysis Project’’ or AVA. As a ‘‘stretch’’ target,
it hoped to be able to cut costs by as much as 40 percent.
The AVA survey was actually begun in another department
about 2 months earlier than the transactions under scrutiny
here. Indeed, the first department to undergo it was the head-
quarters group, primarily located in The Gas Company
Tower, located on West 5th Street in downtown Los Ange-
les. Some E&OS employees work in that building as well.
By virtue of a stipulation, the parties have agreed that, on
April 23, two of Respondent’s supervisors and agents, L. M.
Stewart4 and G. E. Strang,5 distributed to all employees in
the E&OS department a four-page memorandum regarding
the AVA project. That document is in evidence as General
Counsel’s Exhibit 4. They have also agreed that on May 10
these two, accompanied by other managers, conducted AVA
orientation meetings of E&OS employees at two locations:
the Holiday Inn in the City of Commerce and the Biltmore
Hotel in Los Angeles. Many of those E&OS people were
bargaining unit members. At that time these employees were
advised of the AVA project and the creation of employee
teams to implement it. Similarly, the parties have stipulated
that certain written materials were distributed to the E&OS
employees at those meetings. These are in evidence as Gen-
eral Counsel’s Exhibit 5.
Finally, the parties have stipulated that on May 25, one of
its supervisors, Ron Schwedler, conducted a meeting of
about 50 E&OS employees at its own auditorium in Comp-
ton where he ‘‘solicited input’’ about ‘‘their individual job
tasks,’’ informing them that the ‘‘data in question’’ would be
analyzed by the AVA team for their department pursuant to
the AVA project.
As initially conceived, and as carried out, the AVA had
three basic stages to carry out its goal of identifying and
valuating company activities. The first step was to ‘‘generate
data,’’ i.e., have employees conduct a self-audit of their daily
tasks and report that information on a form. Initially, that
was expected to take about 6 weeks. The second stage was
‘‘idea generation and evaluation.’’ That task was estimated
to take about 11 weeks. The third was to present rec-
ommendations to the AVA steering committee, targeting
early September as the date for completion. After the third
stage was ended, the project was finished. The steering com-
mittee was composed of members of executive management.
It had the power to determine whether any of the rec-
ommendations were to actually be implemented.
It is only the first two stages which are really of concern
under the Act, particularly the first, data collection. The em-
ployees’ concern, however, was a bit different. One of them,
Michaeljohn Martinez, now an appliance service representa-
tive, but in May a mapping aide, allows us a look at the em-
ployee perspective. He says that during the May 25 meeting,
he told Schwedler and Senior Vice President Lee Harrington
of his fears: ‘‘I stated my concern that with the data col-
lected by management, that there was the distinct possibility
that our jobs would be eliminated. It’s almost like cutting our
own throats.’’ Similarly, Sonia Wheeler, a ‘‘building service
assistant’’ (janitor) and a union steward, said she and fellow
employee Terry Byrn (a copy center lead) concluded that the
mandate to cut back whatever needs to be cut back was
‘‘like getting rid our department, period.’’
Tempering his testimony that management persons said
that the AVA might result in the elimination of jobs, Mar-
tinez acknowledged that the managers likewise said, and the
documentation which they used confirms, that if it came to
that, such matters would first need to be negotiated with the
Union.
In this regard, at the May 10 orientation, according to
Martinez, Stewart responded to a question from the floor,
asking, if jobs were going to be eliminated, ‘‘[w]hy they
weren’t going through the normal route of negotiations?’’ He
says Stewart replied, ‘‘[A]t this point we just want to take
this process in a step-by-step time; if there was [to be] the
[sic] job elimination, it would be dealt with at that time.’’
A question-and-answer portion of the documentation pro-
jected onto an overhead screen at that meeting also dealt
with the same subject matter. Questions 13 through 15 ad-
dressed possible job losses. The first simply spoke to pos-
sible work group realignments, making the observation that
if that occurred, there would probably be no uniform way of
reorganizing, that a decision on that issue would not be made
until September, then 4 months hence. In answer to the sec-
ond, there was a reference to a company job guarantee pol-
icy, followed by a statement that ‘‘[i]mpacts on represented
employees will be in accordance with the Union contract.’’
The last answer also said, ‘‘Any revisions to represented po-
sitions will be negotiated with the Union.’’
I think it is clear that the management representatives at
that meeting stated that the AVA consisted of stages, the first
of which involved the creation of teams to collect data. Other
stages were to follow. The next stages were to be the valu-
ation of those tasks and the generation of ideas based on the
data collected, followed by the actual recommendations. As
of May 10, indeed, as of June 2, the last day any bargaining
unit people were involved in the AVA, the only stage in
progress was data collection.
I turn now to the actual collection of the data. To collect
it, the E&OS department was divided into 1 groups of tasks,
later expanded to 12. These ‘‘units,’’6 as they were called,
were assigned to a ‘‘unit leader.’’ (As used in this project
the word ‘‘unit’’ should not be confused with the labor rela-
tions definition of the word. It is not shorthand for ‘‘bargain-
981SOUTHERN CALIFORNIA GAS CO.
7 There is no contention that the teams are dominated labor organi-
zations within the ambit of Sec. 8(a)(2).
8 A full-time equivalent is not quite the same as a full-time em-
ployee. It addresses hours and tasks, not jobs per se. Thus a full-
time equivalent is worth 40 hours per week, but the 40 hours may
be parsed among several employees.
ing unit.’’) Each leader was assigned several employees
which were collectively called a ‘‘team.’’7 The team mem-
bers were all rank-and-file employees, although of the 56
employees selected, only 2 or 3 came from the Union’s bar-
gaining unit. Some of the unit leaders were supervisors; oth-
ers were not.
Beginning on May 11, the teams were called together by
their unit leader. They were given a package of documents,
in evidence as General Counsel’s Exhibit 26, which was both
a review of previously disseminated information as well as
a blueprint for the team members to follow as they went
about their duties of collecting the data. It is a useful docu-
ment, for it sets forth the levels of authority under the project
and also lists the various duties of each level. It describes
from the top down, the four organizational levels of the
AVA. The highest authority is the steering committee. Aside
from being in charge of the program, it is also the body
which is to ‘‘[d]ecide which recommendations to accept,’’
and, I infer, to implement those recommendations. The sec-
ond highest level is the AVA project manager, Rick Phillips
(whose regular job was manager of underground storage and
transmission). He was the ‘‘ramrod’’ of the program and was
accountable to keep the it on schedule and to make certain
that all the tasks were completed properly. The next level
down was the unit leaders, followed by the unit employees
or team members.
The blueprint for data collection included the creation of
questionnaires following the acronym ‘‘M/A/E.’’ The letters
stand for the information which each employee was to pro-
vide. The first was the employee’s (M)ission. The second,
his or her (A)ctivities on an annual basis, but measured in
hours. The last is (E)lements, meaning any tangible product
or service which the employee or work unit provided, and
in the earlier survey was more readily recognizable as
‘‘(E)nd Product.’’ In addition, there were specific instruc-
tions to omit labor costs from the survey. (See the Reeves
memo of May 18 (G.C. Exh. 27, p. 9) which was distributed
to the team members.)
The General Counsel has not offered in evidence any
M/A/E questionnaire filled out by any employee in the
E&OS department. The only ones in evidence are the sam-
ples which Respondent distributed to the unit members in
May. There is one document in evidence which collates
some of the material generated by the M/A/E questions to
E&OS (C.P. Exh. 3), an Update of August 13, the ‘‘Quick
Hit Table.’’ This is a compilation of nonlabor budget items
which the AVA recommended be eliminated, saving about
$239,000 for the remainder of 1993 and $379,000 for 1994.
None involves a mandatory bargaining subject and none in-
volved a loss of jobs, much less jobs which were positions
in the collective-bargaining unit.
The results of the AVA for the E&OS department were
published in an Update of September 14. It shows that the
project manager, among other things, did recommend that 68
FTEs (full-time equivalents) be eliminated.8 Testimony
shows that of the 68, 18 were from the bargaining unit. It
should be noted here that the complaint does not contend that
the elimination, or proposed elimination of 18 bargaining
unit jobs violated the Act, either under Section 8(a)(3) or (5).
I infer from that circumstance that Respondent, as promised,
did in fact notify the Union and bargain with it either over
the decision or the effects of the decision. It is also appro-
priate to note here that Respondent never reached its
‘‘stretch’’ target of a 40-percent reduction of operational
costs; the actual savings was 16–17 percent.
It is undisputed that a few bargaining unit members were
included on the data collecting teams. One of these was
Wheeler. Two others were Byrn and a key shop employee
named Bill Vanottes. A fourth person who may or may not
have been in the bargaining unit was Nancy Castro, who had
been serving as a drafting supervisor for almost a year, al-
though still paying union dues as a lead engineering clerk.
Except for Castro, all the others were removed from the
AVA unit teams on or before June 2. None of them was ever
asked to do any AVA task except help create and distribute
the questionnaires and advise fellow employees of the proper
way to fill them out. Thus none of them performed the next
stages, task valuation and/or idea generation or participated
in any recommendation process. It is possible that, unknown
to anyone, that they did submit ideas, for all employees had
been invited to submit ideas for cost savings. Even though
there is no evidence about the extent to which ideas were
submitted by statutory employees (whether in or out of the
bargaining unit), it is clear that the invitation was simply
that—an invitation and entirely voluntary. It was no different
from being asked to use the old-fashioned suggestion box.
B. The Alleged Connection to the Collective-
Bargaining Process
During the AVA process, the collective-bargaining con-
tract was about to expire. Its term had begun in 1991 and
it had an expiration date of March 31, 1993. The evidence
shows that the contract was extended twice after that date to
June 30. According to the Union’s secretary-treasurer, Janet
Jones, bargaining had actually begun in early January, was
quite protracted, and a new contract was not reached until
March 1994. She says the parties averaged two to three col-
lective-bargaining meetings per week during that 15-month
period.
At the outset of negotiations, Respondent made two pro-
posals which the Union now believes track the AVA. They
are known as company proposals 24 and 31 (C–24 and C–
31 in the negotiation records). C–24 proposed to modify sec-
tion 15.01 of the collective-bargaining contract. That provi-
sion regulated Respondent’s right to contract with outside
providers for the performance of routine bargaining unit
work. The clause permitted outside contractors to perform
such work so long as bargaining unit personnel were working
full time and the work could not be postponed. Respondent
made at least two proposals to change section 15.01 to ex-
pand its right to contract out. One was made in March and
another in June. The March proposal was broader; the June
proposal narrowed its scope.
Proposal C–32 dealt with an entirely new matter for the
contract, the creation of ‘‘Employee Involvement Efforts.’’
The contract in other places had previously established shop
committees for certain purposes. This proposal was to create
similar committees ‘‘to identify projects, develop goals and
982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Sec. 8(d) defines the obligation to bargain collectively. In doing
so, it requires both the union and the employer to bargain in good
faith ‘‘with respect to wages, hours, and other terms and conditions
of employment.’’ These topics have come to be known as mandatory
subjects of bargaining.
implement changes designed to improve the Company’s op-
erating performance’’ through the participation of employees
who were directly involved in such work.
The proposal was designed to incorporate into the contract,
the right to ask employees, operating as a committee, to pro-
vide ideas to make the company operate more efficiently as
well as to give them the authority to carry them out. This
concept, too, went through several modifications. It was
eventually withdrawn from the table on July 26.
Jones asserts she sees similarities between the AVA and
these proposals. She sees it through the use of some jargon
which Respondent appears want to use. Specifically, the
terms are ‘‘benchmarking’’ (together with its cousin ‘‘com-
petitive benchmarking’’) and ‘‘employee breakthrough
teams.’’ In looking at this jargon and these parties’ constant
use of nonspecific terminology elsewhere, I wonder whether
this case would have even come about had ordinary English
been the norm. Certainly such imprecision leads to both con-
fusion and suspicion of motive.
In any event, the AVA literature had used the word
‘‘benchmark’’ in an effort to describe an aim of the program,
to evaluate all tasks which the Company performed against
a benchmark or best practice with respect to those same
tasks. That benchmark may already be found within the
Company, but it might also be found elsewhere. Once found,
the way the Company performed the task was to be meas-
ured against that benchmark, and a valuation placed on it.
Depending on the result, the AVA might make a variety of
recommendations. These would range from task elimination,
modification, consolidation, or ‘‘outsourcing’’ (more jargon
meaning ‘‘contracting with an outside supplier’’). The phrase
‘‘benchmarking’’ is actually defined in the AVA paperwork
and appears to have been orally defined to the employees as
well. Nonetheless, Wheeler says her team leader, Osburn, de-
scribed it to mean ‘‘contracting out.’’ I think either she or
Osburn is mistaken here, but given the confusion generated
by such terms, a mistake is understandable.
At the bargaining table, but not appearing until sometime
in June, Respondent introduced the phrase ‘‘competitive
benchmarking’’ with regard to proposal C–24, modifying the
scope of the contracting clause. This dealt with the Compa-
ny’s right to contract with outside vendors in the event they
could perform unit work more economically than Respond-
ent’s own employees. The two phrase are indeed similar, but
they are certainly not the same. If Jones saw similarities, it
was because Respondent inadvertently led her to see them.
Even so, the timing does not truly support her claim of a
connection.
Similarly, the phrase ‘‘employee breakthrough’’ was seen
in both places. The AVA used it to describe the process of
employee commitment to the idea generation stage. It wanted
employees and first line management to feel free to create,
to give birth to new ways of doing things. That same concept
appears in the employee involvement shop committees which
were the subject of C–32 at the bargaining table, for the
committees were called at the table ‘‘employee breakthrough
teams.’’
Analysis and Conclusions
Focusing on the principal issue raised by the complaint,
whether Respondent has engaged in unlawful direct dealing
with its employees in derogation of the exclusivity provisions
of Sections 8(a)(5) and 9(a) and thereby undermining the
Union, I must conclude that the evidence fails to support a
violation. In order to prove such a violation, it must be
shown that Respondent is communicating with its rep-
resented employees and that the discussion is for the purpose
of establishing or changing the wages, hours, and terms and
conditions of employment within the meaning of Section
8(d)9 or undercutting the Union’s offer to establish or change
them, and finally, such communication must be to the exclu-
sion of the Union. See generally Obie Pacific, 196 NLRB
458, 459 (1972). I think the evidence fails on a number of
fronts.
First, there is the question of the involvement of bargain-
ing unit employees. The evidence shows only that three (pos-
sibly four) bargaining unit employees in the E&OS depart-
ment had any involvement in the AVA program at all. Their
only function was to collect data about the jobs of them-
selves and their fellow employees through the use of ques-
tionnaires which attempted to collect descriptions of the
functions each department employee performs. This is noth-
ing more than a desk audit. The employees involved may
have had some role in modifying the questionnaires for dif-
ferent parts of the department, but that has not clearly been
shown. What these employees did, together with their 53 un-
represented colleagues, was to distribute the questionnaires to
other employees and answer questions concerning the proper
manner to fill them out. This was accomplished on a depart-
mentwide basis and was without regard to whether certain
portions of the department personnel were represented by the
Union. Thus only three of the approximately 173 represented
employees in the E&OS department were asked to help,
about 1.7 percent of that portion of the bargaining unit. It is
also only about 0.67 percent of the E&OS department and
an infinitesimal portion of the entire 6000 person bargaining
unit.
To be sure, the AVA program was aimed at all persons
in the department, including the one-third who were bargain-
ing unit members. Indeed, both the represented and unrepre-
sented E&OS department employees answered the question-
naire. Even so, that act amounted to nothing more than ask-
ing those employees to summarize their daily tasks, hardly
an effort to poll employees about their preferences for
changes in wages, hours, or terms and conditions of employ-
ment. Management certainly has the right to know what tasks
its employees perform on a daily basis. It has that right
whether or not it intends to use that information to later for-
mulate operational changes or propose changes in the collec-
tive-bargaining contract or other forms of collective bargain-
ing, such as work rule changes, i.e., matters which need to
be first discussed with the Union.
Thus, at the outset, I do not find that using employees to
carry out the data gathering process relating to themselves in
any way involves proposals to employees themselves or an
effort to undercut the Union’s proposals. Nothing of sub-
stance has been proposed here. In fact, this does not even
983SOUTHERN CALIFORNIA GAS CO.
qualify as a ‘‘poll’’ which might run afoul of the holding in
Obie Pacific, supra.
Second, mandatory bargaining subjects of Section 8(d) are
not actually implicated in any way. The General Counsel has
not shown a single item of wage, hour, or term or condition
of employment which the questionnaire suggests changing. It
is true that the questionnaire asks for the number of hours
spent on a particular task during the year and it is also true
that it seems to be an effort to get each employee to describe
his/her job. Even so, those are not the ‘‘hours’’ or ‘‘terms
and conditions’’ of employment which the statute envisions.
Moreover, wages are not mentioned anywhere in the ques-
tionnaire.
Lastly, to the extent the AVA might result in rec-
ommendations, which, if implemented, would require chang-
ing wages, hours, or terms or conditions of employment (and
there was at least some likelihood of that), at the very outset
management said, both orally and in the written material,
that such proposals, if ever formulated, would be routed
through the collective-bargaining process. Thus, the Union
was not to be excluded from the role which the statute con-
templates for it. It was, however, to be excluded from the
data collection and task valuation process, matters which are
not contemplated by the statute for they are not mandatory
subject matters. Even so, at the time of the activity, no rec-
ommendations had been, or even could have been, authored.
Thus, the Union’s concern was entirely premature. None of
this went beyond permissible communication with its em-
ployees over legitimate business concerns. See Logemann
Bros. Co., 298 NLRB 1018, 1019–1020 (1990).
Apparently recognizing the inadequacy of the facts stand-
ing alone, the General Counsel has attempted to fold into the
mix two company proposals from the collective-bargaining
table. They deal with a modification of the extant clause
governing the right of Respondent to contract with an outside
supplier work which would ordinarily be done by bargaining
unit personnel and new language concerning a possibly relat-
ed effort to involve bargaining unit employees in operational
decision-making.
The first matter was already in the collective-bargaining
contract. It therefore stands independent of any separate ef-
fort to contract away bargaining unit work. The limited right
to do so pre-existed the AVA by at least 2 years; perhaps
more if that subject was covered by agreements earlier than
the 1991–1993 contract. That it would come up again in the
course of periodic bargaining seems entirely predictable. The
presence or absence of the AVA program can have had noth-
ing to do with it. Moreover, the AVA’s concern with the
possibility of contracting out can literally be seen as only one
of several possible outcomes. At best it was conjectural. It
was certainly nothing having any certainty. And, assuming
such a recommendation was eventually made, bargaining unit
employees would not have been involved in making the rec-
ommendation. Therefore, the Union could not have been un-
dermined by being bypassed. No event had yet occurred
which could have undermined its status.
With respect to the employee involvement shop commit-
tees, whatever form they may have taken, again the connec-
tion to the AVA is entirely speculative. In the AVA, some
rank-and-file employees (a minuscule number from the bar-
gaining unit and the rest unrepresented) engaged in some
questionnaire distribution and data collection for a period of
about 3 weeks. I am unable to see what that has to with the
contractual creation of employee involvement shop commit-
tees whose job would be to make recommendations regard-
ing operational changes. Assuming the Union acceded to
such a proposal, it might give the committee members some
authority they do not now possess. Assuming it did not ac-
quiesce, they would have the authority they now have. Either
way, the AVA process is entirely discrete from the contract
proposal. Being unrelated, it could not have had the under-
mining effect which the General Counsel claims, despite
Jones’ belief. And, of course, the whole thing became moot
when the proposal was withdrawn.
Similarly, Martinez’ and Wheeler’s beliefs and fears, while
no doubt genuine, appear to be both premature and not ger-
mane to the appropriate legal analysis. The subjective fears
of employees are not a ground for any decision which the
Board must make. That can be based only on the portion of
Section 8(a)(5) which prohibits direct dealing.
It seems to me that the reality of this fact pattern is that
the Union is attempting to nip, even before the bud appears,
proposals which it foresees coming from the data developed
by the AVA. It, like Respondent, does not know what they
may turn out to be, but it prefers not to have to deal with
them. By attempting to characterize the AVA as direct deal-
ing and undermining, it seeks to prevent Respondent from
using a process designed to assist it to learn about its own
business. In essence it seeks to prevent management from
having access to information permitting it to manage knowl-
edgeably. If it accomplishes that, it believes it can avoid bar-
gaining over unpleasant proposals which might come up.
That is a motive far different than complaining that manage-
ment is engaging in direct dealing or attempting to under-
mine its 9(a) status. It is not a purpose which the Board can
countenance. This portion of the complaint should be dis-
missed.
As a backup theory, the complaint asserts that the imposi-
tion of the AVA somehow constitutes an unlawful unilateral
change of working conditions. The complaint is not very spe-
cific in that regard. It seems to attack Respondent’s very im-
position of AVA duties on the E&OS department’s bargain-
ing unit employees, whether being directed to attend meet-
ings, becoming a team member or even filling out the ques-
tionnaires. That sort of breadth appears to be unwarranted.
Clearly being required to attend company meetings and an-
swering questions about one’s daily tasks are not mandatory
bargaining subjects and do not raise any obligation to bar-
gain. No wage, hour, or term and condition of employment
is implicated.
It is true, however, that for a short period of time three
bargaining unit employees were asked to distribute question-
naires and assist fellow employees in filling them out. There
is, however, no evidence in the record describing the amount
of time these employees were daily involved in that effort.
Looking at the questionnaires themselves, it would appear
that most employees could fill them out adequately without
asking the team member for assistance. Certainly that assist-
ance, when given, would not have taken long. Indeed, there
is no evidence that the jobs of these three employees was
permanently changed or that this temporary duty was in any
way more onerous than each employee’s regular job.
In this regard, I note that article II of the collective-bar-
gaining agreement is a management rights clause in which
984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 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.
Respondent has ‘‘retain[ed] the unquestionable and exclusive
right to manage its business and direct the working forces
. . . provided it does not conflict with’’ other provisions of
the contract. No party has cited me to any contract provision
prohibiting this sort of work assignment and I cannot find
any. Accordingly, it seems to me that Respondent had the
right to ask its employees to perform the data collection task.
And, it seems to me, asking 1.7 percent of the affected
portion of the bargaining unit to perform this duty for a short
period is not a material or substantial change warranting a
remedy. See Rust Craft Broadcasting of New York, 225
NLRB 327 (1976). Accordingly, the allegations that Re-
spondent’s activity here constitutes an unlawful unilateral
change of working conditions must be rejected.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and
in an industry affecting commerce within the meaning of
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.
3. Respondent has not committed the unfair labor practices
of which it is accused in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
ORDER
The complaint is dismissed in its entirety.