The Dow Chemical Co.

National Labor Relations Board - Board Decisions

Jan 13, 1977

227 N.L.R.B. 1005 (N.L.R.B. 1977)

DOW CHEMICAL COMPANY 1005
The Dow Chemical Company and United Steelworkers
of America, AFL-CIO. Case 7-CA-10443
January 13, 1977
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, PENELLO, AND
WALTHER
The National Labor Relations Board issued a
Decision and Order in this proceeding on December
30, 1974, finding that Respondent had not violated
Section 8(a)(5) and (1) of the Act by adjusting
grievances without permitting its employees' collec-
tive-bargaining representative to be present. The
Board dismissed the complaint without determining
whether or not "grievances" were involved because it
found that the collective-bargaining representative's
limited waiver of its right to be present at the
adjustment of grievances applied.' On May 18, 1976,
the United States Court of Appeals for the Third
Circuit held that the Union had not waived its right to
be present, vacated the Board's order dismissing the
complaint, and remanded the proceeding to the
Board to determine whether any of the matters
adjusted by Respondent were grievances within the
meaning of the Act, and for further proceedings
consistent with its opinion.2 The Board notified the
parties on September 1, 1976, that it had decided to
accept the remand and that they would submit
statements of position. Thereafter, statements were
filed by Respondent and the Charging Party.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
As more fully set forth in the Administrative Law
Judge's Decision,3 the Respondent, without consult-
ing or notifying the collective-bargaining representa-
tive of its employees, began a program called "Speak
Out!" in December 1972 to improve communications
between Respondent and its employees. Questions
and complaints were submitted to the program and
were either answered or resolved. Matters "adjust-
ed"4 under the program included complaints about
reductions in pay; seniority on the overtime list;
improper use of operating personnel to replace high
voltage fuses; and failure to treat employees equally
i 215 NLRB 910, Member Fanning dissenting.
s 536 F 2d 550
3 215NLRB 9I0.
' The Administrative Law Judge, whose opinion was adopted by the
Board , and with whom the court agreed in this respect , found that
Respondent adjusted matters within the meaning of Sec. 9 (a), although
finding it unnecessary to determine whether grievances were involved
5 Elgin, Joliet & Eastern Railway Co v. Burley, 325 U.S. 711 (1945), Toledo
Locals Nos 15-P and 272 ofthe Lithographers and Photoengravers Internation-
227 NLRB No. 153
in the distribution of gifts on Respondent's anniversa-
ry. These examples, cited by the Administrative Law
Judge, are representative of matters alleged to con-
cern "grievances."
Generally, "grievance" within the meaning of
Section 9(a) of the Act has been identified as referring
to both disputes over interpretation and application
of a collective-bargaining agreement and those mat-
ters delimited in Section 9(a) of the Act: rates of pay,
wages, hours of employment, or other conditions of
employment.5 No exhaustive definition of "griev-
ance" need be attempted here; it is enough that any
of the matters involved can be identified as a
grievance. Pay, seniority, overtime, and matters
relating to safety or work assignments are classic
examples of mandatory bargaining subjects and are
also matters within an employer's obligation under
Section 9(a).6
We conclude, therefore, that the Respondent violat-
ed Section 8(a)(5) of the Act by soliciting and
adjusting grievances through its "Speak Out!" pro-
gram without providing the Union an opportunity to
be present at the adjustment.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce
within the meaning of the Act.
2. The labor organization involved is a labor
organization within the meaning of Section 2(5) of the
Act.
3. By unilaterally instituting and maintaining a
program whereby it solicited and adjusted grievances
without permitting the collective-bargaining repre-
sentative of its employees to be present, Respondent
violated Section 8(a)(5) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices affecting commerce, we
shall order that it cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act. Although, in our judgment, it is
necessary and appropriate to require the Respondent
to discontinue application of its "Speak Out!" pro-
gram to bargaining unit employees, we do not
a! Union, AFL-CIO (The Toledo Blade Company, Inc), 175 NLRB 1072
(1969); Bethlehem Steel Company, Shipbuilding Division, 89 NLRB 341
(1950).
6 Indeed, Respondent's selection of certain "complaints" or "problems"
for public resolution in the pages of "Brinewell ," its magazine , because of
their general interest, indicates that their adjustments were intended to have
broad application, to form a part of "the law of the shop ." See Bethlehem
Steel, supra.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foreclose it from instituting a program in the future
which does not suffer the legal infirmity found here,
by confining such a program to limits consistent-with
its duties under the Act towards its employees and
their collective-bargaining representative.
ORDER
Pursuant to Section, 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,,
The Dow Chemical Company, Midland, Michigan,
its officers, agents, successors,.and assigns, shall:
1. Cease and-desist from:--
(a) Instituting and maintaining a program-to solicit
bargaining unit grievances and to adjust bargaining
unit grievances, without giving the Union an oppor-
tunity to be' present at the adjustment, except as
permitted in the collective-bargaining agreement with
the Union or as the Union may agree to permit in the
future.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following-affirmative action which is
necessary to effectuate the policies of the Act:
(a) Discontinue the "Speak Out!", program as it
applies to employees in the bargaining unit represent-
ed by United Steelworkers of America, AFL-CIO.
(b) Post at its Midland division plants copies of the
attached notice marked "Appendix." 7 Copies of said
notice, on forms provided by the Regional Director
for Region 7, after being duly signed by Respondent's
representative, shall be posted by Respondent imme-
diately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said-notices are
not altered, defaced, or covered byany other materi-
al.
(c) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
7 In the event that this Order is enforced by a Judgment of a Umted States
Court of Appeals, the words in the notice readmg "Posted by Order of the
NationalLabor 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." -
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT institute and maintain a program
to solicit bargaining unit grievances and to adjust
bargaining unit grievances, without giving the
United Steelworkers of America; AFL-CIO, an
opportunity to be present at the adjustment,
except as permitted in our collective-bargaining
agreement with-.the -Union or as the Union may
agree to permit in the future.
WE .WILL discontinue- the. "Speak Out!" pro-
gram insofar as it applies to employees in the
bargaining unit represented by United Steelwork-
ers of America, AFL-CIO.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of their rights under Section 7 of the Act.
THE Dow CHEMICAL
COMPANY