The Dow Chemical Co.

National Labor Relations Board - Board Decisions

Dec 30, 1974

215 N.L.R.B. 910 (N.L.R.B. 1974)

910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Dow Chemical Company and United Steelworkers
of America, AFL-CIO. Case 7-CA-10443
December 30, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On June 25, 1974, Administrative Law Judge
Charles W. Schneider issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
the Charging Party filed exceptions and supporting
briefs, and the Respondent filed cross-exceptions with
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
the complaint herein be, and it hereby is, dismissed in
its entirety.
MEMBER FANNING, dissenting:
In December 1972, the Respondent initiated a
"Speak Out!" program in its Midland division. The
program permits an employee to air job-related ques-
tions and complaints without revealing his identity.
Questions and complaints are addressed to the "Speak
Out!" coordinator in writing and need not be signed. If
they are signed, the writer's identity is kept confidential
by the coordinator and the writer is guaranteed a reply.
Unsigned questions and complaints are answered only
if they are of general interest; in which case the reply
is printed in the Respondent's monthly employee publi-
cation, the "Brinewell." Subjects range from ecology
and the Respondent's recycling program to safety haz-
ards, seniority, and loss of pay on being transferred to
another job. Responses are made either by the coor-
dinator or through him if he has referred the problem
to another management official.
The Respondent did not notify, or consult with, the
Union before unilaterally instituting the program. The
Union filed unfair labor practice charges and a com-
plaint was issued alleging, in substance, that the Re-
spondent had violated Section 8(a)(5) of the Act by
adjusting grievances without permitting a union repre-
sentative to be present.
The Administrative Law Judge, as more fully set
forth in his Decision, found that the Respondent had
not violated the Act solely because the Union had
waived its right under Sections 8(a)(5) and 9(a) to have
a representative present at the adjustment of griev-
ances. He held that the collective-bargaining
agreement's requirement that an employee first state
his grievance to his immediate supervisor, either alone
or accompanied by a union steward at the employee's
option, was applicable. In reaching that conclusion, the
Administrative Law Judge noted that under the con-
tract a complaint is presented to the employee's im-
mediate supervisor, while under the "Speak Out!" pro-
gram it is addressed to the program coordinator. Since,
in practice, questions and complaints were largely re-
ferred to "the supervision involved," he concluded that
the variance was not material.
The majority adopts the Administrative Law Judge's
findings and conclusions without comment and dis-
misses the complaint. In my view, however, the Union
did not waive its right to be present at the adjustment
of grievances in any circumstance other than that set
forth in the contract. Nor do I agree that there is no
material difference between the provisions in the con-
tract and the "Speak Out!" program.
The Union's agreement to permit the presentation of
grievances to immediate supervisors without the pres-
ence of a union representative can scarcely be read as
abdication of its role as the employees' representative
in dealing with management, even to the extent that
advocacy is not involved. In effect the Respondent's
program created an "ombudsman." Granting a single
individual authority to speak to all employees on behalf
of the Respondent, either with or without consultation
with other members of management, necessarily im-
plies a certain uniformity and the creation of precedent.
In Bethlehem Steel' the Board observed that
"[g]rievances are usually more than mere personal dis-
satisfactions or complaints of employees...." citing
with approval the [following view that]
Whether . . . cast in the form of an interpretation
of the agreement or not, any adjustments made of
these questions [terms and conditions of
employment] affect the whole plant. The rulings
tend to become precedents and may eventually
constitute a body of industrial common law sup-
plementing the formal agreement.'
I Bethlehem Steel Company, Shipbuilding Division , and Bethlehem-Spar-
rows Point Shipyard, Inc, 89 NLRB 341, 344 (1950)
2 Cox, "Some Aspects of the Labor Management Relations Act," 61
Harv L Rev 274, 320.
215 NLRB No. 139
THE DOW CHEMICAL COMPANY
The likelihood that grievance resolutions through the
"Speak Out!" program will become precedent is en-
hanced by publication of "Speak Out!" questions and
answers in the "Brinewell," a monthly magazine for
employees . The response to one complaint may well
become precedent for the response to the next, whether
the latter is raised through the program or through the
contract grievance procedure. Thus, the impact reaches
beyond the individual complaint , and beyond any con-
templated in agreeing to a supervisor 's resolution of
grievances arising among employees under his immedi-
ate supervision.
There is some suggestion in the Administrative Law
Judge's Decision that the coordinator is little more
than a'clerk or secretary routing questions from an
employee back to his immediate supervisor for reply to
protect the anonymity of the questioner. That is clearly
not so, nor do I believe that the Administrative Law
Judge intended that implication . Were that the case, I,
too, would have difficulty in perceiving any meaningful
variance from the contract provisions . In fact, many
complaints and questions are referred to higher level
management for resolution . There is nothing in the
contract remotely suggesting that the Union contem-
plated any adjustment of grievances at a level above
that of an immediate supervisor , or with an impact
beyond the authority of the firstline supervision, with-
out its participation.
The contract precisely details the circumstances in
which the Union waived its presence at the adjustment
of grievances . Those circumstances do not include the
"Speak Out!" program or anything equivalent to it,
either in form or effect. The contract instead explicitly
requires the Union's participation and control in the
event that a grievance cannot be satisfactorily adjusted
by an employee 's immediate supervisor . In fact, it ap-
pears that in at least some instances employees resorted
to the "Speak Out!" program after, and because of, an
unsuccessful presentation of their grievance to an im-
mediate supervisor. The next step required by the con-
tract is presentation to the employee 's union steward,
not the Employer's "Speak Out!" coordinator.
Clearly, the Union did not consciously and unmis-
takably waive its statutory right under Section 8(a)(5)
and 9(a) of the Act to be present at the adjustment of
grievances except when a satisfactory adjustment could
be made by an employee 's immediate supervisor.'
In my judgment , the Respondent violated Section
7 Compare this "waiver " of a union 's explicit, statutory right to be present
at the adjustment of grievances , confirmed by a contract grievance proce-
dure, with the conclusion , over my dissent , that an employer had not "con-
sciously waived" its right to a Board-conducted election, although it had
explicitly agreed to recognize the union and conceded its majority status in
an appropriate unit, because the agreement did not provide any specific
method for determining majority status Houston Di vision of the Kroger Co,
208 NLRB 928 (1974)
911
8(a)(5) of the Act by soliciting and adjusting grievances
through its "Speak Out!" program without providing
the Union an opportunity to be present at the adjust-
ment.
DECISION
STATEMENT OF THE FACT
CHARLES W. SCHNEIDER , Administrative Law Judge: On
June 22, 1973, United Steelworkers of America,
AFL-CIO, the Union , filed the charge in this matter against
the Dow Chemical Company , the Respondent . Subsequently,
on August 29, 1973 , the Regional Director for Region 7
issued a complaint and notice of hearing alleging , inter alia,
that by instituting on December 22, 1972, and since that date
maintaining , a program called "Speak Out!" the Respondent
violated Section 8(d), 8(a)(1), and 8(a)(5) of the National
Labor Relations Act (29 U.S.C. 551, et seq.).
On September 7, 1973, the Respondent filed its answer,
and on October 9, 1973 , an amended answer, in which it
admitted certain allegations of the complaint , but denied the
commission of unfair labor practices . Thereafter the parties
executed a stipulation and motion containing an agreed upon
statement of facts and exhibits , waiving hearing , and submit-
ting the matter for decision by an Administrative Law Judge
upon the stipulated record. Opportunity was afforded all par-
ties to file briefs by May 28 , 1974. Briefs have been received
from the General Counsel and the Respondent.
Upon the entire record in the case, and after consideration
of the briefs , I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent is, and has been at all times material
herein , a corporation duly organized under , and existing by
virtue of, the laws of the State of Delaware . At all times
material herein, the Respondent has maintained its principal
office and place of business in the city of Midland , and State
of Michigan. The Respondent maintains other plants in the
States of Michigan and California . The Respondent is, and
has been at all times material herein , engaged in the manufac-
ture , sale, and distribution of petrochemicals , chemicals,
fuels, and related products. Respondent 's plants which com-
prise its Midland Division located at Midland and Bay City,
Michigan , are the only facilities involved in this proceeding.
During the year ending December 31, 1972, which period is
representative of its operations during all times material
hereto , the Respondent , in the course and conduct of its
business operations , purchased and caused to be transported
and delivered at its Midland Division plants , chemicals and
other goods and materials valued in excess of $50 ,000, which
were transported and delivered to its plants in Midland and
Bay City , Michigan , directly from points located outside the
State of Michigan . During the year ending December 31,
1972, which period is representative of its operations during
all times material herein , the Respondent , in the course and
conduct of its business operations , manufactured , sold, and
distributed at its Midland Division plants located in Midland
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Bay City, Michigan, products valued in excess of $50,-
000, which were shipped from said plants directly to points
located outside of the State of Michigan. The Respondent is
now and has been at all times material herein an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the National Labor Relations Act, as amended,
herein called the Act.
II THE LABOR ORGANIZATION INVOLVED
Local 12075, United Steelworkers of America,
AFL-CIO (formerly Local 12075, International Union of
District 50, Allied and Technical Workers of the United
States and Canada), herein called the Union, is and has been
at all times material herein a labor organization within the
meaning of Section 2 (5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Issue
On or about December 22, 1972, the Respondent estab-
lished in its Midland Division, and has since maintained, a
program whereby employees of the Division may communi-
cate in writing to management (confidentially if desired by
the employee), job-related questions and complaints, with
provision for management to reply thereto. This program is
known as "Speak Out!". The program was instituted without
notification to or consultation with the Union, which is-the
bargaining representative of employees of the Respondent in
the appropriate bargaining unit set out below.'
The issues are: (1) whether proceedings are barred by Sec-
tion 10(b) of the Act, and (2) if not, whether the institution
and maintenance of the "Speak Out!" program are violative
of Section 8(d), 8(a)(1), and 8(a)(5) of the Act because (a)
they constitute solicitation and resolution of grievances of
employees within the appropriate unit concerning employ-
ment conditions, (b) derogated the status of the Union and
the collective-bargaining agreement, and (c) were taken with-
out prior notification or bargaining with the Union.
The Union has never requested negotiations concerning
the establishment or operation of the "Speak Out!" program,
or filed a grievance under the collective-bargaining agreement
respecting said establishment or operation.
B. The Grievance Procedure
Insofar as pertinent here the grievance procedure provided
in the collective-bargaining contract (art. III) is as follows:
SECTION 3-Grievance Procedure
I All full-time and regular part -time hourly, piece-rate, and day-rate em-
ployees employed by the Respondent at its Midland Division plants, includ-
ing the Beaver Creek Gas Collection System, Specialty Products, located at
Midland and Bay City, Michigan , excluding all superintendents , assistant
superintendents , foremen, plant protection employees , guards and supervi-
sors as defined in the Act, and all salaried employees
The Union or its predecessor has been the recognized collective -bargain-
ing representative of the appropriate unit since about 1955, pursuant to
contract The latest contract was effective from March 8, 1971, to March
11, 1974. The stipulation of facts having been drafted prior to March 11,
1974, the record does not disclose the contractual situation as of this time
A. It is the intent of this Section, to establish means
for prompt adjustment of grievances at the job level with
the immediate supervisor and the employee. Therefore,
in order to promote better cooperation, understanding,
and labor relations between employees, Union Represen-
tatives, and the Company, it is agreed that an employee
with a complaint or request, must first state his com-
plaint or request to his immediate supervisor, and will
give that supervisor a reasonable opportunity to adjust
the problem before resorting to grievance procedure.
The employee may have a Steward present at this meet-
ing, but the employee must state his own complaint.
B. If the complaint is not satisfactorily adjusted by the
provisions of Paragraph A, then the grievance procedure
outlined below shall be followed:
Step 1-An aggrieved employee shall take up his
grievance with his Steward, and if the Steward deems it
a just one, the Steward and the aggrieved employee shall
confer with the aggrieved employee's immediate supervi-
sor in an attempt to reach an equitable adjustment.
Beyond step 1 there are further steps in the procedure, not
pertinent here, for consideration of the grievance at higher
management and Union levels. If both parties so elect, the
matter may at the termination of the procedure be referred
to final and binding arbitration.'
C. The Purpose of "Speak Out!"
The Respondent's purpose in establishing "Speak Out!" is
stated in the booklet accompanying announcement of the
program. A copy of this booklet was mailed by the Respond-
ent to each employee. Following are excerpts therefrom, not
necessarily in the order in which they are stated in the book-
let:
"Speak Out!" is one more channel open to you as a
Midland Division employee when you want an answer
to a question, an investigation into a complaint, or a
reply to a comment-when that question, complaint, or
comment is related to your job, the Midland Division, or
Dow.
s s s s s
It's a Dow and a Midland Division policy to encourage
all employees to take their job-related questions, and
complaints, and comments to their immediate supervi-
sor. Or to the supervisor's supervisor. Or to somebody
in an appropriate staff job in Employee Relations, Indus-
trial Relations, or so on.
That policy is unchanged.
But the "Speak Out!" program is kind of a safety
valve. Because, being human, each of us sometime comes
up with a question, or a beef, or an observation that we'd
just rather not put to the man in person. Maybe we figure
he'd be embarrassed-or that we'd be embarrassed.
Sound like a smart aleck, or a dummy, or an agitator.
i i i R •
2 No issue is raised with respect to the applicability of the principle of
CollyerInsulated Wire, 192 NLRB 837 (1971). Neither party to the contract
has requested that this case be deferred pending arbitration of the dispute
under the contract. I therefore express no opinion in that respect
THE DOW CHEMICAL COMPANY
So that makes "Speak Out!" a supplement . It opnes up
a way for any of us to speak his mind , and get an answer,
when something 's nagging at us but-for some
reason-we'd rather not take it the more usual route.
* * * * *
Still, we 'd like an answer or an explanation . But, too
often , we keep walking around with the question or
complaint nagging at us-instead of getting it off our
chest and clearing the air.
"Speak Out !" is designed to fit the situation . It invites
you to ask any question , submit any complaint, make
any comment . And it guarantees you a full, frank
reply-a private reply , if you want it that way.
Most unanswered questions and unsatisfied complaints
arise from misunderstandings . And most misunder-
standings come from a lack of information . So the Mid-
land Division benefits by providing information to clear
the misunderstandings.
As for comments-well, we all work here and it's
logical to believe that each of us is interested in making
it a better place to work . Add on the fact that managers
and staff people don't have any monopoly on brains or
ideas, and it should be clear that "Speak Out!" just might
bring in some comments of great value in improving
virtually any aspect of things as they are in the Midland
Division.
* * *
You'll recognize that the idea behind "Speak Out!" is
nothing new for Dow or the Midland Division . From the
day Herbert H. Dow started his company , he expected
everyone involved-regardless of job or title-to feel
free to discuss anything related to the job with anybody
else up or down the ladder . "Speak Out !" is one more
way of encouraging such discussion in the larger, more
complex organization we have today.
But notice , please, that "Speak Out!" does not replace
face-to-face , in-person talk between any of us as an em-
ployee and our supervisor or boss. That's still by far the
best way , and usually the fastest way, to get an answer
to a question or action on a complaint or comment. And
both company and division policy strongly encourage
this direct , in-person communication.
D. The Mechanics of "Speak Out!"
Briefly , the "Speak Out!" system works as follows: An
employee desiring to submit a "question , complaint or com-
ment" through "Speak Out!" obtains a two-part message
form from any of a number of specially marked "Speak Out!"
boxes around the plant ; writes his message on the upper part
of the form ; and, if he chooses , also fills in his name and
address in the space provided on the lower portion of the
form . The form is then sealed and sent to the "Speak Out!"
coordinator.
When the coordinator receives the form, he opens it and,
if the employee 's name is filled in , detaches the lower portion
so that the employee 's anonymity will be preserved. His
secretary then retypes the message portion of the form, and
the coordinator refers it to the employee's immediate supervi-
sor or whomever in the division-or elsewhere in
913
Dow-has knowledge of the fact or policy involved. Once the
reply is returned to the coordinator, he matches it again with
the employee's name and address and sends it to the em-
ployee. If the employee submitting the form has not filled in
his name and address , his inquiry will be answered only if the
subject is deemed to be of sufficient general interest to war-
rant publication of the message and response in the "Brine-
well", a monthly publication for all the Respondent's Mid-
land Division employees.
From the inception of the program through November
1973, 284 "Speak Out!" messages were submitted by em-
ployees in the bargaining unit . Copies of these messages and
the responses thereto are in evidence . The precise number of
employees in the bargaining unit is not disclosed , but the
Respondent 's brief estimates the number at approximately
5,000. (Br., fn . 5.) Each month , beginning with February
1973, two or three pages of the "Brinewell" have been de-
voted to the publication of "Speak Out!" questions and an-
swers deemed to be of general interest to employees, and
whose publication the inquiring employee has authorized.
E. The Nature of Employee Messages to "Speak Out!"
The 284 messages submitted to "Speak Out!" by employees
in the bargaining unit up to the end of November 1973,
covered a wide range of subjects. Examination of the mes-
sages in evidence discloses that, in all but a minority of cases,
the submittals related to matters broadly classifiable as
"wage , hours, or other terms or conditions of
employment"-a result in keeping both with the purpose of
"Speak Out!", and to be anticipated from the nature of the
program .3 These in turn are dividable into two broad
catagones , major and minor, the former referring to condi-
tions established as general and uniform policy-some as a
result of provisions in the collective -bargaining contract,
some not-the latter referring to application of policies to
specific individuals in specific cases-broadly classifiable as
grievances. See Elgin Ry. v. Burley, 325 U . S. 711 (1945).
Among the matters thus identifiable as "major ," illustra-
tive subjects were the Respondent 's retirement plan, sugges-
tions for revision thereof, insurance program , promotion poli-
cies, job reduction , contracting out of work , seniority,
bumping rights , contract violation, compensation for work or
vacation time devoted to public service activity , comfort and
safety in plant facilities, employee discounts , bonuses, and
awards , bus service , parking facilities , and plant rules.
A significant number of messages related to the "minor"
category , that is, individual causes for dissatisfaction because
of application or nonapplication of a policy in a particular
instance . Specific illustrations are clothing allowances, work
on the Sabbath, lack of overtime , failure to recall from layoff,
failure to receive expected company gifts , interrogation as to
the use of sick leave , loss of seniority , improper wage classifi-
cation , loss of bumping rights, schedule, and loss of pay on
transfer.
Some messages related to subjects commonly considered to
be primarily of management-as distinguished from
3 As has been seen, the brochure advised employees that "Speak Out""
was available when it involved a "question , complaint , or comment
related to your lob "
914 DECISIONS OF NATIONAL LABOR'RELATIONS BOARD
bargaining-concern, such as administrative procedures,
budgeting, quality control, and intra-management communi-
cation.
There was an expectable smattering of undiffused gripe and
crank letters. Several suggested that the Respondent was anti-
union or accused it of engaging in intimidatory tactics. The
great majority of the messages merely requested information
as to, or suggested policies for, the Respondent. So far as the
record reveals, all that could be answered received responses.
F. The Respondent's Replies to the Messages
Where the message involved broad established policy pro-
vided for in the contract or otherwise, the Respondent's reply
stated the applicable policy. Where the message involved
individual complaint, that is, one relating to treatment of the
complaining individual, an investigation was made and reply
given. Some inquirers or complainants were advised to com-
municate their views to the bargaining committees or to the
union steward. In several situations, investigation resulted in
adjustment of the problem to the presumed satisfaction of the
complainant, or meetings were arranged with company offi-
cials with a view to adjusting the matter. Thus, the following
incidents (page references are to pages of Exh. 6):
(1) As a result of being bumped from a utility to an opera-
tor's job, pay of the complainant was reduced 5 cents per
hour. Investigation by the coordinator of "Speak Out!" re-
vealed the reduction to be erroneous, and it was therefore
restored retroactively (p. 560).
(2) Upon return from military service the complainant was
placed at the bottom of the overtime list. He was advised by
the coordinator that the placement was erroneous, that ac-
cording to the overtime agreement in that department, he
should be placed in the middle of the list (pp. 196-197).
(3) A "lone" operator, inquiring whether an exception
could not be made in his case to the general plant rule forbid-
ding use of personal radios in the plant, was invited to discuss
the matter with the coordinator. Whether there was further
action is not disclosed (pp. 445-446)
A subsequent request from another employee for permis-
sion to bring a radio into the plant to listen to the night World
Series baseball games, met the response from the coordinator
that the Plant Rules Committee had apparently decided
against revision of the rule-requiring denial of the request
(pp. 533-534).
(4) Supervisors, in violation of the contract and safety
rules, were, according to the complainant, ordering operating
personnel to replace 440 volt fuses and to make minor electri-
cal repairs. The coordinator responded to the effect that this
would be stopped (pp. 386-387).
(5) A failure of supervision in one department to offer
employees optional gifts available to other departments, in
connection with the Company's 75th anniversary, was
remedied by making the gifts available to the complaining
group (pp 133-134).
(6) In the case of an employee denied an odd schedule, and
asserting discriminatory treatment in that regard, a meeting
was arranged between the employee and company and union
representatives to discuss the matter (pp. 245-246).
(7) An employee who was an ordained, but unpaid, clergy-
man, was required to use vacation time to conduct funeral
services . In response to an employee suggestion that such
activity be compensated by the Respondent - as performance
of a civil duty , the coordinator , expressing the feeling that the
problem could be resolved , arranged a meeting between the
clergyman and company personnel (pp. 270-271).
G. Effect of "Speak Out!" on Grievance Activity
Grievance activity under the collective-bargaining agree-
ment does not appear to have declined since the "Speak Out!"
program has been in operation. A chart in evidence entitled
"Twenty Year Grievance Trends," indicates that both the
overall number of grievances filed and the number of gnev-
ances per 100 employees within the bargaining unit increased
in the months immediately following the inception of "Speak
Out!". Another chart entitled "Grievance Activity By
Months, 1971-1974 Contract" indicates that the rate of
grievance filings has risen somewhat in the period following
the commencement of the "Speak Out!" program.`
Conclusions
1. The 10(b) issue
The Respondent contends that the complaint is barred by
Section 10(b) of the Act because the charge was not served
within 6 months after the establishment of the "Speak Out!"
program.
Section 10(b) provides, in part, that no complaint shall
issue based upon an unfair labor practice occurring more than
6 months prior to the filing of the charge and service thereof
on the respondent. In the instant case the charge was filed on
June 22, 1973, exactly 6 months after the date of establish-
ment of "Speak Out!" A copy of the charge, addressed to the
Respondent, was placed in the United States mail by the
Regional Office of the Board on the same date, but was not
received by the Respondent until June 25, 1973.
The Respondent's position is that, properly read, Section
10(b) requires that the charge be received by a respondent
within the 6-month period. I do not find that contention
sustained.
Section 102.113(a) of the National Labor Relations Board
Rules and Regulations and Statements of Procedure, Series
8, as amended, provides that: "The date of service shall be the
day when the matter served is deposited in the United States
mail, or is delivered in person, as the case may be."
That rule constitutes an authoritative interpretation of Sec-
tion 10(b), and is binding on the Administrative Law Judge.
It is therefore found that the charge,-was timely filed and
served, and that the complaint is not barred by Section 10(b)
of the Act.
2. The merits
The "Speak Out!" program is essentially a device for the
promotion of dialogue and communication between the Re-
spondent and its employees, through the conveyance of inqui-
4 Thus, the exhibits indicated that from December 1, 1971, through
November 1972, 71 grievances were filed, while for the period December
1, 1972, through November 1973, the number was 86. No data is given
beyond November 1973
THE DOW CHEMICAL COMPANY
ries, comment, and complaint from employees to the Re-
spondent related to their jobs, and the return of information,
comment, and disposition of the complaint by the Respond-
ent.
The gist of the allegations of unfair labor practices is that
the program constituted solicitation and adjustment of griev-
ances without intervention of the bargaining agent , thus dero-
gating the Union 's representative status , and that by that
action and the unilateral establishment of the program, the
Respondent modified the terms of the collective -bargaining
agreement without compliance with the provisions of Section
8(d), thus refusing to bargain collectively in violation of Sec-
tion 8(a)(5) and derivatively violating Section 8 (a)(1).'
Unless its purpose or its effect is to avoid compliance with
statutory obligations , an employer's communications pro-
gram designed to answer employee questions , comments, or
complaints , respecting job-related conditions , is not, so far as
I am aware, unlawful . I am neither familiar with , nor am I
cited to any authority so holding. There is no suggestion here,
nor do the facts warrant inference, that the Respondent's
purpose in establishing "Speak Out!" was to avoid dealing
with the Union. The remaining question in that regard then
is whether the program had that effect. Though I think its
unilateral establishment unnecessarily thoughtless and coun-
terproductive, I have concluded, for the reasons given here-
after, that it did not.
Since the Union was the contractual bargaining representa-
tive of the appropriate unit, the Respondent was precluded by
the Act from negotiating with employees on bargainable is-
sues , or from entertaining or adjusting grievances , without
compliance with the provisions of the Act and the collective-
bargaining agreement . As has been seen , there is no evidence
that the Respondent negotiated with employees over, or that
"Speak Out!" contemplated, the establishment or mainte-
nance , by agreement with individual or groups of employees
in the unit, of working conditions of general applicability.
Authority to negotiate such matters is a function preserved
exclusively to the Union by the statute. There having been no
impairment of the Union's authority in that regard, that
leaves only the question as to whether grievances were solic-
ited or adjusted in derogation of the Union's status, the con-
tract, and the provisos to Section 9(a) of the Act. Whether the
Respondent was legally required to discuss or consult with
the Union prior to establishment of "Speak Out!" depends
upon the answer to the latter question, that is to say, whether
there was solicitation or adjustment of grievances through
"Speak Out!" in such fashion as to be violative of union
authority or prerogative, or of the collective-bargaining
agreement.
Section 9(a) provides, in sum, that the majority representa-
tive in the appropriate unit shall be the exclusive representa-
tive for purposes of collective bargaining, and then makes
provision concerning the adjustment of grievances. These
provisos are as follows:
S Briefly, Sec. 8 (d) of the statute defines the duty to bargain collectively
to include, inter aka, a duty to refrain from modifying or terminating a
collective-bargaining contract except upon 60 days' written notice given
poor to the expiration date or proposed modification date, whichever is the
later
915
Provided, That any individual employee or a group of
employees shall have the right at any time to present
grievances to their employer and to have such grievances
adjusted , without the intervention of the bargaining rep-
resentative , as long as the adjustment is not inconsistent
with the terms of a collective -bargaining contract or
agreement then in effect : Provided further, that the bar-
gaining representative has been given opportunity to be
present at such adjustment.
The language of the provisos is simple and clear. What
litigation there has been over their meaning has generally
been with respect to the question as to whether the matter
presented involved a "grievance," and if so at what point in
the process it arose. See, for example, Bethlehem Steel Com-
pany, 89 NLRB 341 (1950); Elgin Ry. Company v. Burley,
325 U.S. 711 (1945); Chevron Oil Company, 168 NLRB 574
(1967); Douds v. Local 1250, etc., 173 F.2d 764 (C A. 2,
1949); Westinghouse Electric Corp. v. N.L.R.B., 325 F.2d 126
(C.A. 7, 1963); Toledo Local 15-P Lithographers, et al., 175
NLRB 1072 (1969); Texaco, Inc., 168 NLRB 361 (1967).
We put aside at the outset situations involving an em-
ployer's attempt to use information or similar programs to
derogate the status or image of, or to intrude upon, the lawful
prerogatives of a bargaining representative. The present issue
involves an assumption of the Respondent's good faith and
the absence of any purpose to denigrate the Union or to
trespass upon its functions.
Clearly the Act does not forbid an employer to disseminate
accurate and truthful information concerning job-related
conditions to employees represented by a union. Indeed, it
would appear to be in the interest of all concerned, employee,
union, and employer alike, that employees be fully advised as
to conditions of employment. It may even be arguable that a
representative union has a duty to provide such information
to employees-a question not decided here. But even if so,
that would not necessarily preclude the employer from pro-
viding the information-particularly where the union does
not. That its work force be informed as to perquisites and
obligations of employment is properly a matter of concern for
an employer.
Similarly, to the extent consistent with the Act and any
applicable collective-bargaining agreement, I apprehend no
reason why an employer may not legitimately provide a
precedure through which individual dissatisfactions or com-
plaints of employees may be voiced, and perhaps relieved. As
was stated in the "Speak Out!" brochure: "People bothered
. . . by unanswered questions, or . . . unsatisfied complaints,
are apt to work at something less than their best capability."
As the representative of the employees, such a program,
adeptly handled, would seem in aid of, and not a hindrance
to, the Union's function. In respect to individualized com-
plaints, however, the problem is a bit more delicate; for the
act of remedying a "complaint," which an employer may
permissibly do sua sponte, may imperceptibly shade into the
"adjustment" of a "grievance" which, under the second
proviso to Section 9(a) of the Act, he may not do without
affording the representative opportunity to be present. In the
instant case, as we have seen, "complaints" were remedied
without opportunity for union participation. The question
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then is, were these "complaints" "grievances," and were they
adjusted in violation of the command of Section 9(a)?
I find it unnecessary to answer the first question as to
whether the individualized complaints filed under "Speak
Out!" were "grievances." For the purposes of this proceeding
I will assume that they were, without specifically so deciding.
As to the second question, I find that the Respondent's
actions in disposing of the individualized complaints consti-
tute "adjustments" within the meaning of the proviso to Sec-
tion 9(a) of the Act, whether granted or rejected.6 We thus
have a situation in which the respondent adjusted grievances
without providing opportunity for the bargaining representa-
tive to be present at the adjustment. Absent other material
facts such action would appear contrary to the requirements
of Section 9(a), and thus violative of Section 8(a)(5). How-
ever, there is another material fact which in my judgment
requires a negative conclusion: a provision in article III, sec-
tion 3, A, of the collective-bargaining contract.
As we have seen , in that subsection the Union and the
Respondent agreed that an employee having a "complaint or
request" must first state it to his immediate supervisor and
give that supervisor a reasonable opportunity to adjust the
problem "before resorting to grievance procedure." It is fur-
ther provided that the employee may have a steward present
at this meeting but must state his own complaint. Paragraph
B of section 3 provides that if the complaint is not satisfac-
torily "adjusted" in the above procedure then the employee
and the steward shall confer in an attempt to adjust the
matter, and from that point on further steps are provided,
ending with possible arbitration.
There is no mandatory provision under subsection A for
the presence of a union steward. Whether there shall be one
is left to the election of the employee. If the complaint or
request constitutes a "grievance" at this stage under the
meaning of the proviso to Section 9(a) of the Act, the Union
has waived its right to insist upon being present. This it may
do Bethlehem Steel Company, 89 NLRB 341, 345 (1950);
Hughes Tool Co. v. N.L.R.B., 147 F.2d 69, 73 (C.A. 5, 1945).
If then, individual grievances were adjusted by the Respond-
ent under the "Speak Out!" program without affording the
Union an opportunity to be present at the adjustment, this
was no more than the action permitted under the grievance
procedure of the contract. True, there is one difference: Sec-
tion 3, A, of article III states that the matter shall be pre-
iented to the employee's "immediate supervisor," whereas
under "Speak Out!" the complaint is first addressed to the
coordinator of "Speak Out!" This, however, does not seem to
be a substantial difference, for in practice, "Speak Out!" com-
plaints appear to be referred by the coordinator to the super-
vision involved. In any event I do not regard the variance as
of any material significance. I therefore find that, insofar as
the adjustment of grievances is concerned, the Respondent's
procedure under "Speak Out!" is not different in substance
from that permitted it under the greivance procedure of the
contract.
It therefore follows that if as alleged in the complaint, the
"Speak Out!" program was one for the solicitation and reso-
6 In the case of Bethlehem Steel Company, 89 NLRB 341, 348 (1950), the
Board interpreted the word "adjustment" in Sec 9(a) to include "the rejec-
tion" of a gnevance
lution of employee complaints and grievances, the Respon-
dent's action, insofar as it involved resolution, was authorized
by the collective-bargaining agreement. Insofar as the pro-
gram involved solicitation, I find nothing in the Act which
forbids the solicitation of complaints or grievances where, as
here, it has neither purpose nor effect of avoiding statutory
obligations. I therefore find none of the action taken to be in
derogation of the status of the Union, or impairing the
Union's prerogatives as exclusive bargaining representative.
The Respondent's actions constituting, at most, the exer-
cise of an authority granted it by the collective-bargaining
contract, and which had thus been previously negotiated, I
conclude that there was no legal requirement for prior notice
to or consultation with the Union prior to the establishment
of "Speak Out!" This is not to approval of the unilateral
action. Sicne the matter involved employment conditions it
was one on which sound industrial relations would seem to
have suggested consideration of the Union's possible joinder
in or approval of the program, or at least prior notification
of it. The day should be past in mature relationships when the
advice or view of a bargaining representative is sought by an
employer only where it is required by law and cannot be
avoided. Genuine employer concern for keeping open lines of
communication with employees ought not-if it is to be
truly successful and not misunderstood, and thus self-
defeating-exclude communication with their bargaining
representative. To have advised the Union in advance of
"Speak Out!", and have provided it opportunity to state its
views, would not have been to admit the Union to partnership
in managerial determinations or to grant it a veto over the
program. As employee representative the Union ought to be
as anxious as the Respondent to forestall, to uncover, and to
eliminate latent sources of discontent within its constituents
over their job status, and "Speak Out!", I believe, may offer
genuine possibilities in that respect. It may be that the Union
would have useful views as to the program, cooperation with
it, and even contributions to it. However, the Union's exclu-
sion from the process of establishment provides ready ground
for misunderstanding as to the Respondent's motives, and to
some may suggest a significant contrast between the Respon-
dent's concern for the sensitivities of its employees and its
concern for the sensitivities of their bargaining representative.
It will be recommended that the complaint be dismissed in
its entirety. Westinghouse Electric Corp., 325 F.2d 126 (C.A.
7, 1963). Other contentions raised need not be decided.
CONCLUSION OF LAW
The Respondent has not engaged in unfair labor practices
by the conduct alleged in the complaint and disclosed by the
record.
ORDER7
The complaint is dismissed in its entirety.
7 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions and Order, and all objections thereto shall be
deemed waived for all purposes
e U. S. GOVERNMENT PRINTING OFFICE 1976 0 - 599-731