281 N.L.R.B. 17 (N.L.R.B. 1986)

Whirlpool Corp.

National Labor Relations Board - Board DecisionsAug 8, 1986

281 N.L.R.B. 17 (N.L.R.B. 1986)

WHIRLPOOL CORP. 17 Whirlpool Corporation and Local Lodge No. 1918, International Association of Machinists and Aerospace Workers, AFL-CIO. Case 7-CA- 24007 8 August 1986 DECISION AND ORDER honor its statutory obligation to provide requested rele- vant information to the Union. Briefs were filed by the parties about 3 October 1985.2 Having * considered the briefs , the entire record, and my recollection of the demeanor of the witnesses, I reach the following findings of fact, conclusions of law, and recommendation. I. RELEVANT BACKGROUND FACTS BY MEMBERS JOHANSEN , BABSON, AND STEPHENS On 12 March 1986 Administrative Law Judge Bernard Ries issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed cross-exceptions and a brief in support of its cross-exceptions and in response to the General Counsel's exceptions. The National Labor Relations Board has delegat- ed 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 decided to affirm the judge 's rulings, findings,' and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. 1 The Respondent and the General Counsel have excepted to some of the judge 's credibility findings. The Board 's established policy is not to overrule an administrative law judge 's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir . 1951). We have carefully examined the record and find no basis for reversing the findings. We agree with the judge that the Respondent was not shown to have undertaken , through past practice or mutual understanding , an obligation to produce witnesses at suspension hearings if the Union requested their presence . We therefore need not decide whether the Union waived any right to bargain with the Respondent over the alleged change in terms and conditions of employment when the Respondent failed to produce the witness at issue in this case Deborah A . Syx, Esq ., for the General Counsel. Larry G. Hall, Esq. (Matkov, Griffin, Parsons, Salzman & Madoff), of Chicago , Illinois, for the Respondent. DECISION BERNARD RIES, Administrative Law Judge. This matter was tried on 24 and 25 June and 23 and 24 July 1985 in St . Joseph , Michigan . ' The complaint , as amend- ed at the hearing , alleges that Respondent violated Sec- tion 8(a)(5) of the Act in two ways: (1) by' refusing to make available a police undercover agent for questioning by. the Union at certain prearbitration hearings, Respond- ent unilaterally repudiated an established condition of employment ; and (2) by so refusing, Respondent failed to 1 The charge was filed on 9 November 1984 and the complaint issued on 11 December 1984. Respondent and the Union have enjoyed a collective- bargaining relationship, now covering some 1250 em- ployees, for about 30 years at Respondent 's St. Joseph, Michigan plant . 3 Their periodic bargaining agreements have included a grievance procedure climaxing in final and binding arbitration. The contractual grievance procedure is a typical one. At the "first step," there is a discussion between the em- ployee or a steward and a foreman which, if not disposi- tive, is followed by a grievance reduced to writing. The assistant chief steward presents the grievance in writing to the area superintendent at the "second step ." If the dispute persists, the grievance is presented at the "third step" to the manager of labor relations . After "discus- sion" of the grievance between the union and company grievance committees , the Company presents its "final answer" to the Union . The grievance may thereafter be submitted , at step 4, to arbitration. Although there is no contractual basis for it, the par- ties have adopted over the years a preliminary , process they call the "suspension hearing ." If an employee is thought by a supervisor to have committed a punishable offense and the employee is consequently suspended for an indefinite period , the parties promptly hold an infor- mal hearing to determine the precise punishment to be meted out, or whether any penalty is in fact deserved. Present for the suspension hearing are management and union representatives , the accused employee, and, nor- mally, the "eyewitness" or "accuser" (almost always a foreman or a guard). The highest ranking management representative states the nature of the alleged offense, and the eyewitness, or someone else, then gives his testi- mony . Although the accused employee is afforded the opportunity to make a statement and to cross -examine, as a matter of practice , it appears that the accused does not speak out very often and the Union handles his or her defense.' If, as is virtually always the case , the suspension is sus- tained, a specific penalty-a certain number of days off 2 Counsel for the General Counsel also filed a motion to correct the record Respondent has filed no opposition . The proposed corrections appear to be in order , and the motion is granted. 8 In its answer to the complaint , Respondent advanced the affirmative defense that the issues raised in this case should be deferred to the griev- ance-arbitration procedure contained in the current collective-bargaining agreement. Respondent 's brief contains no argument based on that con- tention, probably in view of such cases as United Technologies Corp, 274 NLRB 504 ( 1985). 4 I say this with some hesitancy. Much is in conflict in this record, even down to the question of how often accused employees actively par- ticipate in suspension hearings. One union witness testified that the em- ployees probably speak for themselves half the time ; another, who has been attending these hearings for 5 - 1/2 years, said that he could remem- ber no hearing at which an employee presented his side of the story. 281 NLRB No. 7 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or termination of employment-is imposed. The employ- ee may at that point, and for the first time, file a written grievance, and that grievance is considered at the follow- ing step 3 meeting , bypassing the first two steps. Al- though the matter may be briefly discussed at the step 3 meeting, the parties usually treat it as having been effec- tively argued and disposed of at the suspension hearing. The Union may then take case to arbitration. II. THE ALLEGED UNILATERAL CHANGE The parties regard the "suspension hearing" as an ex- tracontractual practice, which it clearly is. 5 It is , howev- er, also very clearly an established term or condition of employment (the record refers to such hearings being held as early as 1970) and, as such , may not be unilateral- ly altered by a party, e.g., Peerless Food Products, 236 NLRB 161 (1978). The parties, however, are in dispute about the precise characteristics of this unarticulated term of employment. As stated at the hearing by counsel for the General Counsel, the basic issue on this branch of the complaint is whether the practice has been that "the Company pro- vided an eyewitness to the alleged infraction at suspen- sion hearings, and when there was a deviation from that practice in the past, the Company either agreed to hold the hearings when the witness was available or the Union agreed to do without the witness being present." Respondent agrees that, normally, it makes available at these hearings any eyewitness employees, but that the decision to do so has always been discretionary with the Company, without any unconditional right in the Union to insist on a postponement to await the availability of a missing witness; and, further, that in the present circum- stances, Respondent was incapable of exercising control over the missing witness. In the instant case , Respondent's plant had been expe- riencing an unusual amount of theft and use of illegal substances. In February 1984,6 after discussions with rep- resentatives of the state police, the local police, and the local county prosecutor's office, Respondent executed a written agreement with the state police, which provided that the latter would undertake a criminal investigation that contemplated the use of an undercover agent or agents at the plant. Martinez, the confidential police informant (CPI) as- signed by the state police, was not introduced into the plant as a Whirlpool employee, but rather, to afford him mobility, as a training employee of ARA, an independent concessionaire that operated the commissary and vending facilities throughout the plant. The operation lasted from February until July, when the police concluded that they could expect no more fruitful results. The final report re- ceived by Respondent from the state police showed that the CPI had observed five employees consuming alcohol 5 Indeed, it seems to be implicitly contrary to one provision of the agreement "Should the Union desire to protest a discharge case, such protest shall be submitted as a written grievance to the Company as pro- vided in Step three (3) of the grievance procedure and must be submitted within five (5) workdays after the discharge has taken place " It could be argued that the limited reference to "discharge" permits no other penalty to be submitted directly to step 3 8 All dates hereafter refer to 1984 and/or smoking marijuana and five others committing of- fenses such as larceny and selling cocaine.' Six of the 10 were arrested. Around 12 July, Steve Winkler, manager of employee relations at the plant, and his subordinates, Larry Wagner, manager of employee services, and Jack Ward, a labor relations administrator, met with Union Business Agent Jim Morris and Local Union Vice President Im- bordino to inform them of the investigation and its re- sults. Wagner and Ward both testified that, in response to an inquiry by Morris about the availability of the CPI to testify at the suspension hearings, Winkler stated that the CPI would not do so, but would be available to testi- fy at any arbitration hearings that should eventually ensue. When Ward met with Local 1918 President M. B. Rogers on Monday, 16 July (Rogers had been on vaca- tion the preceding week), he gave the same answer to the same question put by Rogers.8 7 An example of the written information received by Respondent (and thereafter given to the Union) follows JOHN HINTON-W/M, DOB 2/22/49, residing at 1607 Ogden Avenue, Benton Harbor, Michigan , Social Security #364 42 7492, home phone 925-7517, previous address of 1326 Michigan Avenue, St Joseph, Michigan 1 (Policy) On 5/23/84, John HINTON, Larry THOMAS and Bill ALEXANDER with CPI #8 went above the paint booths in Plant #4 and smoked marijuana 2 (Criminal Complaint #2730-84) on 6/28/84, CPI #8 entered into a conversation with John HINTON in Plant #4 and from this conversation John HINTON gave a marijuana cigarette to CPI #8 Field test shows the presence of marijuana This seems an appropriate juncture at which to discuss the sequestra- tion issue raised by the General Counsel. At the start of the hearing, Re- spondent invoked the rule, and I thereupon announced. Gentlemen and ladies, that means that all people who are going to be witnesses in this proceeding must leave the hearing room, and I hope there is some comfortable place outside that you can find I also would instruct you that you don't talk to any witnesses who have testified before you, and that when you finish testifying you don't talk to anybody who might be testifying after you. Ward, a potential witness, remained in the room , however, without ob- jection, presumably as "an officer or employee of a party which is not a natural person designated as its representative by its attorney " Rule 615, Fed R.Evid (second exception) Wagner, called as Respondent's first witness, was asked on cross-exam- ination by the General Counsel whether he had recently talked with a company representative about the case, and Wagner eventually replied that he had talked to Ward "this morning" about "my testimony " When pressed to be more specific-What you were going to say today?- Wagner said, "Yeah, I guess you'd call it that." The General Counsel then alleged a violation of the sequestration rule and asked that Wagner's testimony be stricken I deferred ruling on the motion pending further consideration Ward, the next witness to testify for Respondent, was also questioned by the General Counsel on this subject, but he completely contradicted Wagner's testimony, saying, "I don't recall talking to Larry about this case, I don't know what he is talking about" Although Ward made a very nice personal impression, I certainly cannot accept his testimony in preference to that given by Wagner, who obviously was most reluctant to confess it in the first place and was undoubtedly telling the truth. On brief, counsel for Respondent misstates the record by saying there is doubt that Wagner "actually discussed the substance of his testimony with Ward " In fact, as shown above, Wagner conceded that he told Ward what he was "going to say today " Moreover, it is misleading to say that Ward testified that when he and Wagner "discussed" their testi- mony, it was only to speak of preparation and not substance Ward did make such a statement, but it referred only to conversations long preced- ing Wagner's appearance at the hearing Continued WHIRLPOOL CORP. 19 The evidence is in conflict about the reason or reasons governing Respondent 's- decision not to have the CPI appear at the suspension hearings . Union President Rogers testified that in the course of the week beginning 16 July, Respondent 's proffered reasons changed from the assertion that the CPI was on another assignment to the assertion that the police did not want him to testify at the suspension hearing to "the Company doesn't want him there because the court authorities don't want him there." Ward testified that he gave the first two reasons to Rogers in explanation of the CPI 's absence.9 Rule 615 itself spells out only a very simple procedure regarding the exclusion of witnesses "At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other wit- nesses , and it may make the order of its own motion " In telling the po- tential . witnesses that they should not "talk" to one another after they have testified , I exceeded the literal bounds of the rule ("excluded so that they cannot hear the testimony of other witnesses"). Yet the Board has, as the General Counsel points out, applied the rule much more broadly than it reads. Thus, in Robin American Corp ., 245 NLRB 822, 825-826 (1978 ), the ad- ministrative law judge held , without demurrer by the Board , that a meet- ing of several prospective defense witnesses with their counsel was itself, without evidence of what "actually transpired ," a "failure to observe the letter and spirit of the sequestration order ." Cf. U.S. Y. Smith , 578 F.2d 1227, 1235 (8th Cir . 1978). But see also 6 Wigmore Evidence § 1841, which , while recognizing that one of the three objectives of the separa- tion process is "preventing the prospective witnesses from consulting each other," refers to that element as "possibly not of great importance, because before trial there has been already unrestrained opportunity for consultation." Professor Wigmore would apparently agree that the common-law rule includes the discretion to give an order of such breadth as the one I an- nounced . Wigmore, supra at fns 7 and 8 . There was here, however, no violation of the rule even as I stated it. And while perhaps Robin Ameri- can Corp . might stand as a matter of law for the principle that prospec- tive witnesses may not discuss their forthcoming testimony once the rule is invoked no matter how it is phrased , the cases also hold that it is an abuse of discretion to disqualify an offending witness in the absence of special circumstances : Holder v. U.S., 150 U . S 91, 92 ( 1893) ("if a witness disobeys the order of withdrawal , while he may be proceeded against for contempt and his testimony is open to comment by reason of his conduct, he is not thereby disqualified "; U.S. Y. Torbert, 496 F.2d 154 , 157 (9th Cir. 1974) (no disqualification "unless the defendant or his counsel have .. . cooperated in the violation of the order ."); Taylor v. US, 388 F . 2d 786, 788 (9th Cir . 1967) ("unless the violation has somehow so discredited the witness as to render his testimony incredible as a matter of law he should not be disqualified from testifying ."); Gossen Co ., 254 NLRB 339 fn. 1 (1981) (fact that prospective witnesses had read portions of the transcript not disqualifying in circumstances of case). In light of these authorities , I am not inclined to grant the motion to strike Wagner's testimony I am further, not even inclined to approach his testimony with special caution , because the real target here, if any, should be Ward . Taking at face value the facts as we know them, Wagner learned nothing from speaking with Ward , but Ward presumably improved his potential for conforming his testimony by talking to Wagner, even though he expected to be present during Wagner 's testimo- ny. The General Counsel also argued at the hearing, and argues here, that when counsel for Respondent twice recapitulated, in posing questions to Wagner, earlier union testimony about the Union 's version of the suspen- sion hearing procedure, the sequestration rule was again violated. Techni- cally, perhaps, these constituted violations, but I would not count them for much. Indeed , one of the, questions elicited an answer from Wagner that was not unhelpful to the General Counsel ° Wagner more expansively testified that the "police told us" that the CPI would be made available "only" for arbitration hearings for the fol- lowing reasons- one was that he worked out of the Lansing office and the police wanted him to be in the protective custody of Sergeant Gross, who was located at Lansing , as much as possible, another was that they intended to place him undercover in another operation immediately, and did not want to arouse suspicions by having him absent too frequently from his new position , the third was that, because the CPI might likely However, in a statement of position submitted to the Board on 27 November by Mark Montague , director of corporate labor relations at the St. Joseph plant, Monta- gue wrote: [The CPI] was not presented [at the suspension hearings] because criminal charges were pending against several of the employees . We did not feel it was appropriate to potentially influence those pro- ceedings one way or the other by having the agent present his story at that time. Although technically the company might have been able to obtain the presence of the undercover agent prior to the arbitration , we did not feel it was appropri- ate to interfere in the criminal proceedings. This was an unusual and sensitive matter and there were very few guidelines on how to utilize a police un- dercover agent . The company believes it made a ra- tional choice between protecting the integrity of the grievance procedure and not interfering with the rights of the accused in the criminal proceedings. [Emphasis added.] The clear import of Montague 's letter is that the CPI's "unavailability" because of other work had nothing to do with his nonappearance at the suspension hearings10 and that the same can be said of the other reasons given, in- cluding the claim that the authorities had flatly refused to allow the CPI to attend the preliminary hearings. At the hearing , counsel for Respondent agreed to stipulate to the authenticity of the letter with "the understanding" that Montague's knowledge of the case , his efforts at ob- taining background information, and the Board agent's inquiries to which he was responding are all unknown. It is also true , however, that Montague was a high- ranking manager who was entrusted to officially explain to a Government agency the reasons for Respondent's actions in a matter in which it had been formally accused of violating the labor laws. In addition , the record shows that Montague was closely involved in this matter. Wagner testified that on 16 July he had spoken to Mon- tague about the case, saying that the latter had told him "again" that the CPI was "unavailable" and that the prosecutor's office had informed Montague that the CPI would not be available except for arbitrations . In fact, Ward 's notes for 16 July show that Montague simply said to Ward, "Witness would not be necessary at these hearings ." Moreover , Montague's letter indicates that he had carefully investigated the matter before writing (in it, he corrected an earlier statement he had made to the be persona non grata at Whirlpool, they would prefer to minimize his ap- pearances in Berrien County; and, four, that they did not want "to mingle" criminal and noncriminal proceedings On this final point, Wag- ner's testimony seemed somewhat tentative . After he had itemized the first three reasons , he was asked if there were any other police concerns, and he replied , "No, another one certainly would have been the police did not just-." An objection being made in mid-stream to the speculative nature of the forthcoming reply, Wagner then asserted , "No, this was all expressed right to me " 10 Indeed , the CPI was in St. Joseph testifying at criminal arraignment proceedings the very week in which the suspension hearings were held, beginning 24 July. 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board agent), and the letter shows that a copy was sent to Steve Winkler, Respondent's manager of labor rela- tions, who surely knew the particulars and whose subse- quent silence may fairly be taken as acquiescence. Thus, I conclude that either Wagner and Ward were lying at the hearing or Montague was misrepresenting the facts in his letter. Although there is reason in this record for distrusting Respondent's witnesses (one ques- tionable aspect of Wagner's testimony has been earlier discussed; there are other problems in his testimony),' i I can see no reason for Montague to so plainly character- ize the absence of the CPI as an exercise of Respondent's discretion unless it was so-certainly there would have been nothing for Montague to lose, and everything to gain , by stating that the authorities had insisted that the CPI would not be permitted to attend the suspension hearings , if indeed that was the case. 12 I am therefore inclined to believe that Respondent's refusal to attempt to produce the CPI at the suspension hearings stemmed not so much from the adamance of the police authorities as from its own discretionary conclu- sion that to do so would inappropriately interfere with the anticipated criminal proceedings. As I see the legal issue, then, it is whether the established practice pertain- ing to the suspension hearings included an obligation, un- derstood by both parties, that Respondent would do its best to secure the attendance of a material witness at the hearings on the request of the Union (if necessary, post- poning the hearings until the witness becomes available) or whether Respondent retained the right to exercise its own judgment about such matters. On this record, I cannot see that Respondent ever un- dertook such an obligation. The evidence shows that al- though, over the years, Respondent usually had employ- ee eyewitnesses present at the hearings, that was not always so. Although Business Agent Morris initially tes- tified that the key witnesses had always been present, "and it had just never been a question before," he subse- quently said that "normally" the accuser is there, unless he "was not available . .. If he were ill or something," in which case the accuser's superior would "present the Company's case ," usually by reading a report. Union President Rogers, who had attended the suspension hear- ings for a minimum of 12 years, spoke of perhaps no more than two or three times that the accuser was not 11 As for Ward's reliability, I have already noted the serious and inex- plicable conflict between him and Wagner (in which I credit Wagner) concerning the issue of the discussion of Wagner's prospective testimony A similar conflict arose when Wagner testified that at a meeting with Ward and Rogers on 19 July Rogers was given no reasons, but was "simply" told that the CPI would be "unavailable", Ward, to the con- trary, recalled that Wagner walked in and "rehashed again why the CPI wouldn't be at the hearings" This sort of thing may perhaps be attrib- uted to lapsed memory, but other very questionable testimony by Ward relating to a "representative" list of past cases and other matters also cau- tion against implicit trust in Ward (see infra) 12 Respondent made no effort to have Montague or the police testify, or to explain their absence At the instant hearing, the parties stipulated that at each of the 10 suspension hearings beginning on 24 July, the Union requested that the CPI be produced, and Respondent stated that he "should not testify because of the pending criminal proceedings " This not only ignores such matters as other employment and fear for the CPI's safety, but also suggests that Respondent was exercising discretion ("should not") present (he was clearly not good at numbers, estimating that some 60-75 suspension hearings are held each year, while Chief Steward Welch guessed 15-20 and Record- ing Secretary Probst thought it was about 24). First-Shift Chairman James Meredith and Third-Shift Chairman Lloyd Wells both used the word "usually" in referring to the presence of the actual eyewitnesses at the hear- ings , and Wells recalled two hearings in June and Octo- ber 1984 when Ward, and not the eyewitnesses, was present to read the accusatory statement. A "representative" list compiled by Ward from his notes, going back to 1973, purports to show 23 cases in which the eyewitnesses did not appear (including 4 cases in which the Union's request for the presence of the eye- witnesses was assertedly ignored by the Company); al- though a number of the cases are, for various reasons, questionable, after cross-examination and rebuttal testi- mony, they leave no doubt that in 15 of the 23 cases (Stahl-Demske-Mathieu, 6 June 1984; Glass, 8 February 1984; Bogart, 24 June 1983; Ray, 21 May 1981; Zelko, 6 October 1980; Freeman, 21 February 1980; Baker, 24 May 1978; Zielke-Johnson, 26 September 1975; Plumley, 5 September 1975; Coulombe, 24 April 1975; Sartin, 6 February 1975 and 6 November 1974; Patterson, 12 Sep- tember 1974; Smith, 4 October 1973; and Alti-Sweet- McNitt, 31 January 1973), suspension hearings were held in the absence of the principal eyewitnesses. The General Counsel nonetheless contends that these absences might have been attributable to the Union's de- cision to waive the presence of the eyewitnesses, but that the parties had agreed that if the Union insisted on the presence of such a witness Respondent would, then or later, make the witness available. The proof of such an agreement is scant. Business Agent Morris testified vaguely that "the Company always told us, and that would be Mr. Ward always told us that if there was a problem-if we wanted to cross-examine, they [the eye- witnesses] would always be available." He further said, "It's been normal practice in the past ... where the [eyewitness] was not present, the Company has never re- fused if we wanted to cross-examine a witness." Al- though, as earlier discussed, Morris changed his initial testimony on the subject, he had first said that there had never been a hearing without an eyewitness present and "it had just never been a question before." But I do not understand how, even briefly, he could say it had never been a question before and yet recall, on redirect, that Ward had always said that the eyewitness would be made available on demand; and then go on to testify, as he did, that he could not remember any particular case in which the accuser was absent, the Union insisted on his presence, and he was accordingly brought in to testi- fy, despite remembering that Respondent had "never re- fused" such a demand in the past. Testimony of like quality was given by Chief Steward Eugene Welch, whose appearance was impressive, but whose substance left me wondering. Welch told us that under the existing procedure, the accuser "has either been provided or would be provided if he was request- ed." But because Welch could not at first recall any sus- pension hearing at which the principal witness was not WHIRLPOOL CORP. present, it is difficult to see how he came to know of the "or would be provided if he was requested" clause of the unwritten agreement; it scarcely would seem a subject of idle conversation. Three pages later, however, Welch could "recall some [hearings] that maybe the individual was on vacation or something and he may have not been the chief witness, but was a witness that wasn't present." Similarly, Union President Rogers, in recalling the "two or three" times in which his memory told him that eyewitnesses had not appeared, testified: "And it was prearranged and agreed that if the Union wished to ques- tion a person or if the absence of that person impaired the Union's ability to perform their function, that the hearing would be postponed until the individual could be present." Rogers said that he could remember one such instance, something like 10 to 15 years ago, when the eyewitness was brought in on the insistence of the Union, but he could not remember the name of the case. Despite the fact that Rogers' testimony was rather shaky, however,19 there is some respectable testimony favoring the General Counsel's position. For one thing, although it sounds as if Wagner may have been speculating more than recalling , he testified, "I'm sure there were probably times where that was re- quested and we responded accordingly to it, brought some witnesses in if they weren't there for whatever reason , but equally, times we would not if that was our judgment." For another, perhaps the most concrete testi- mony on the Union's part of the alleged practice was given by recording secretary Probst, who, recalled to the stand after examining her notes, said that at the suspen- sion hearing of three employees on 6 June 1984 (after, she "think[s]," the Union asked why the eyewitness was not present), there was a "discussion" in which Ward said "that we had the choice of either having the meet- ing without him, or hold the meeting at a later date.114 Probst's notes presumably reflected her testimony be- cause counsel for Respondent, who had use of them for cross-examination , did not point out any discrepancies. He did bring out that the Union had asked why the ac- cuser was not present, that an explanation was given, and (in an affirmative reply to counsel's use of the word) Probst agreed that Ward "volunteered" to have the meeting on another day. The Union did not accept the offer and, although the case involved a charge of " insub- ordination" by three employees, the positive evidence 13 Although he testified at first that on 16 July Ward told him Re- spondent "probably wouldn't" bring the CPI in for the preliminary hear- ings and that , on 17 July, Wagner said that "the Company hadn't decid- ed" the question , he later testified that on 16 July Ward said that the CPI "wouldn 't and couldn 't" be available, and that , from the start, Respond- ent never changed its position that the CPI would be unavailable. Cf. Tr 99, 104, with 146, 147. Rogers made even quicker changes than that At Tr 148, he went from saying "the Company didn't want him to [appear] because the authorities at the courthouse here didn' t want him to appear" to saying, at Tr. 149, "I don' t recall them ever saying the Company doesn 't want him there because the Court authorities don't want him there ." Rogers struck me as a fine , naturally biased , person with a memory problem. 14 Although Ward had generally denied the existence of a union right to postpone hearings in such circumstances , he was not recalled to specif- ically comment on Probst's rebuttal testimony. 21 was provided by a reading of the foreman-accuser's notes.15 Finally, there is uncontradicted testimony by Rogers, which tends to show that the Union understood that it possessed a right to insist on confrontation with the pri- mary eyewitness at a suspension hearing. Rogers, testified that during his first conversation with Ward on 16 July, after being told that the CPI would "probably" not be present at the suspension hearings, Rogers "objected strongly to that because our-our procedure had always been that-that the witness-the accusing witness would always be present and we didn't feel-I didn't feel that we could give what we felt would be proper representation toward the members affected unless the witness was present for us to examine, cross- examine." Rogers further testified that on 17 July, he said to Wagner "that we have a procedure that we follow and we need to follow and that he [Wagner] knew this coming in or they should have known it coming in and these changes have been made, people were suspended and just to say [the CPI] is off on another case and won't be available wasn't satisfactory." This second piece of testimony was given after Rogers refreshed his memory by an examination of the daily notes he keeps. The notes were given to coun- sel for Respondent for use in cross-examination, but no effort was made to show that either statement was not contained in the notes. Moreover, when Ward and Wagner thereafter testified, they were not asked to com- ment on Roger's claim that he had accused the Company of deviating from a well-established "procedure." Of course, the procedure thus described by Rogers is not the one shown by the record-that the eyewitness "would always be present." Furthermore, given the evi- dence showing a number of cases in which the Union had obviously made no complaint about the absence of eyewitnesses (including one in which the St. Joseph police had surveilled and arrested three employees for using drugs in the parking lot), there is apparently uncer- tainty in Roger's mind about whether proper representa- tion can be afforded "unless the witness was present for us to examine, cross-examine ." Nonetheless, the forego- ing three points constitute some evidence of a Union (and arguably a Respondent) understanding that if the Union insisted, it was entitled to have the eyewitness made available. In attempting to prove the negative of the General Counsel's claim, Respondent went somewhat overboard in asserting the frequency with which it had refused to bring witnesses to the hearings, even after the Union had made such a demand. Thus, Ward recalled instances of this at the rate of "maybe two a year" or "certainly one a year at least, I would say." But Respondent's exhibit called "Compilation of Representative Suspension Hear- ings Where Eye Witness Not Present," showing 23 cases between January 1973 and October 1984, fails by far to sustain Ward's claim , on the facts developed at the hear- ing, about whether a substantial number of these cases even fit within the title of the compilation; and that was 15 In arguing on brief that the General Counsel "failed to present any credible evidence supporting the 'hearing postponement ' argument," Re- spondent failed to note Probst 's testimony 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD also true, in varying degrees, of the only four cases espe- cially marked by Respondent as "Suspension hearings in which the Union requested the presence of the eyewit- ness and in which the hearing continued without the eye- witness." Moreover, neither the title of the compilation nor the phrasing of the category into which the four allegedly special cases fell is very helpful in this proceeding; the Union might, for instance, ask that an accuser be pro- duced and then be persuaded by the Company that, for whatever the reasons, the witness' presence was not really necessary; or the Union might reach that conclu- sion on its own in the first place. But even if the sort of offer and opportunity to which Probst and Wagner testified have occurred from time to time, that would not necessarily mean that the Respond- ent understood that it was bound to make such an offer. That this may not have been the situation was probably best reflected, from Respondent's point of view, in the case of the Whitaker suspension hearing on 8 November 1976, perhaps the only prior instance in the record in which there is some documentary evidence tending to support Respondent's position. Supervisor Roberts, who imposed the suspension for alleged drinking, was not at the hearing. The transcript of the suspension hearing shows that the union representative stated, "I feel the su- pervisor should be here to confront the employee"; Ward, replying that a management witness who was present at the actual suspension was also present at the hearing, denied the request. This is, I believe, as close as the evidence comes to clearly confirming Respondent's claim that it has in the past refused a union request for the presence of an eyewitness.' 6 Other testimony perhaps reflecting on the understand- ing of the parties was given by Rogers, who remembered "a few cases" in which, during the suspension hearing, the proceeding would stop so that Respondent could "get us some additional information." Ward also testified to such a procedure, saying, in his characteristic way, that if important questions arose during the hearing, "I'd call a caucus, get hold of [the missing eyewitness], and get the answer. I can't even remember that happening, frankly." 17 The suggestion seems to be that even when a question arose that might best be answered by the eye- witness, he was not summoned to appear. Another reason for doubting that Respondent would blindly commit itself to postponing a hearing until the accuser became available arises out of the structure of the process as illustrated in this case. It is clear that the penalties imposed for many of the routine offenses are equally routine-normally a 10-day suspension for drink- 16 The testimony regarding the other three cases that Respondent has identified on its list of "representative" cases as ones "in which the Union requested the presence of the eyewitness and in which the hearing con- tinued without the eyewitness" tended to show that, in fact, the Union took no stance to the effect that the eyewitnesses needed to be present at the hearings in question 17 The reliability of Ward's testimony is subject to attack on many flanks The General Counsel gives a good example in her brief At Tr 381, Ward testified that by 20 July he had checked with Wagner, "found out the cost for what we were paying the CPI," and told Rogers. At Tr 430, however, when Ward was asked how much was paid for the CPI's services, he replied, "I have no idea I wasn't involved in any payment " ing, etc . Respondent does not, under the present system, impose a definite penalty on a suspended employee until the suspension hearing has been completed. Having to postpone the hearing until the eyewitness becomes avail- able could mean that the charged employee might be on suspension for a lengthy period before the hearing takes place and then, when it does, be only levied the usual 10- day penalty, arguably obligating Respondent to award him backpay for the excess suspension period.' 8 The General Counsel has the burden of proving a case by a "preponderance of the testimony taken ." (Sec. 10(b).) In this case, that burden includes the demonstra- tion of an established past practice or understanding that Respondent would, at the Union' s request, produce wit- nesses at suspension hearings (or, if necessary, postpone the hearings), even if Respondent did not wish to produce the witnesses. There is not a single documented instance in this record that shows that in such a situation Respondent did produce such a witness .19 I am rather dubious about Rogers' testimony that it was "prear- ranged and understood" that the Union would have this right, considering the complete lack of specificity about when the "prearrangement and understanding" were reached. As for Probst's testimony, which I credit, that in one case Ward offered to postpone the hearing (an offer the Union declined), that conduct is consistent with Wagner's testimony that there were probably times that Respondent brought in missing eyewitnesses and "times we would not if that was our judgment." There is no evidence in this record concerning the origin of the informal, extracontractual, and extraordi- nary suspension hearing practice, but my sense is that it evolved not so much as a way of providing substantive due process to employees, but rather as a method of de- termining the penalty to be imposed on the charged em- ployee (and perhaps giving the Union an opportunity to make a judgment about the potential worth of taking the case to arbitration).20 Although some witnesses called it a "factfinding" hearing, the record tends to show that the accused employees often do not speak in their own behalf (although the Union might ask some questions) and that the Company almost never fails, in the end, to uphold its supervisory accusers on the merits of the charge. The procedure was certainly not designed to ap- proach in comprehensiveness and process the niceties and formality of an arbitration hearing or a lawsuit.21 I tend to doubt that Respondent ever intended to afford suspended employees an unqualified sixth amendment- like right to confront their accusers at these hearings; if 18 In attempting to schedule the hearings in the present case as soon as possible, this was a concern expressed by Respondent It also seemed to be Rogers' understanding of how backpay would work in such a situa- tion 79 On brief, Respondent twice makes the statement that "after review- ing the Union's files," Morris could not find a case in which Respondent had deferred to the Union's insistence The transcript page cited by Re- spondent for both statements quite plainly shows that Morris testified, "I didn't look at all of [the files], dust some of them " 20 Morris at first testified, "[Ill's held to see what happens to the em- ployee " Later, under cross-examination, he agreed that it was a "fact- finding process " 21 The record shows, incidentally, that the CPI did testify in the three arbitrations eventually held in this matter WHIRLPOOL CORP. the Union thought so, I do not believe that there was a meeting of the minds on that point. z z There is another basis for dismissing this allegation. The statute requires that an employer must afford the bargaining representative of his employees an opportuni- ty to negotiate about a change in terms or conditions of employment before it is put into effect . NLRB v. Bennie Katz, 369 U.S. 736, 743 (1962). If, however, the union is aware of the projected change in sufficient time to engage in bargaining before the change is implemented, and fails to request the opportunity to do so, it is consid- ered to have waived the right to oppose the change. Tal- bert Mfg., 264 NLRB 1051, 1055 (1982); Holiday Inn Central, 181 NLRB 997 (1970). It is not enough , further- more, that the union contents itself with simply protest- ing the modification in practice or with filing an unfair labor practice charge ; the union must "prosecute its right to engage in [bargaining]" or be deemed to have forgone that right . American Buslines , 164 NLRB 1055, 1056 (1967). In this case , Rogers eventually conceded that he un- derstood as early as 16 July that Respondent did not intend to produce the CPI at the suspension hearings, and he wrote a letter to Respondent on that day formally requesting that the CPI be present at the hearings. But the Union never thereafter requested Respondent to bar- gain about what it now alleges was an alteration in an established condition of employment ; at best, it only pro- tested . The Union having failed to request bargaining, I must conclude, in accordance with the cited authorities, that the Union waived its right to batrgain about the matter.23 I recommend , therefore, that the violation alleged in paragraph 9(a) through (e) of the complaint be dismissed. III. THE ALLEGED UNLAWFUL FAILURE TO PROVIDE INFORMATION At the hearing , the General Counsel successfully moved to amend the complaint by adding the following as paragraph 9(f) of the complaint : "The information re- quested by the Charging Party, as described in para- 22 The General Counsel argues on brief that the failure of Counselor Montague's 27 November letter to the Board to deny the existence of a practice such as that alleged in the complaint is persuasive evidence that such a practice existed I note, however , that at the time Montague (whose depth of knowledge about labor law is unknown) wrote his letter, the outstanding charge only alleged, inter alia , that Respondent "has re- fused to permit the union the right to question employee accusers and refused to allow the union to question undercover agent during grievance proceedings regarding such entrapment" (emphasis added). The charge does not specify the source of "the right " claimed. More- over, Montague's response does imply a belief that no contrary practice existed and that the Company was entitled to act in its discretion. ("We did not feel it was appropriate . . . . The company believes it made a ra- tional choice ") Applying a similar logic , however , it might be noted that the Union's 16 July letter made no reference to an alleged past practice, nor did any of the 10 written grievances filed after the suspension hearings were held. 23 In my view of the evidence , Respondent did not communicate such a fixed and immutable position on the issue that the Union would have been justified in believing that any attempt to bargain would have been futile . The fact that Respondent offered varying explanations for not pro- ducing the CPI might have suggested to Rogers that a request to bargain over the issue and analyze the various explanations could have positive results. 23 graph 9(c) above, is necessary for and relevant to the Charging Party's performance of its function as the ex- clusive collective-bargaining representative of the em- ployees"; and by further alleging , in new paragraph 9(g), "Since on or about July 24, 1984 , Respondent has failed and refused to furnish the Charging Party the informa- tion requested by it as described in paragraph 9(c)." The claim is that by refusing to produce the person (or, as Respondent puts it on brief, "the body") of the CPI at the suspension hearings as requested , Respondent failed to satisfy its statutory obligation to furnish information to the Union. The leading case on the duty to furnish grievance-re- lated information is NLRB v. Acme Industrial Co., 385 U.S. 432 (1967). There the Court held that the Board is empowered to order an employer to make requested in- formation available when the union , believing that the bargaining agreement may have been violated , demon- strates merely "the probability that the desired informa- tion was relevant , and that it would be of use to the union in carrying out its statutory duties and responsibil- ities." The Court characterized the standard as "discov- ery-type." Id. at 437. Recognizing this authority in the Board rather than solely in the arbitrator, said the Court, ..was in aid of the arbitral process" because it would help "sift out unmeritorious claims" rather than "force the union to take a grievance all the way through to arbitra- tion without providing the opportunity to evaluate the merits of the claim ." Id. at 438. The Board and the Courts have ordered employers to furnish information of all sorts to unions to assist in de- termining whether a grievance should be processed through arbitration , e.g., ACF Industries, 231 NLRB 83, 92-93 ( 1977) (handwriting analysis of employee terminat- ed for falsifying claims), or even whether a grievance should be filed in the first place, Los Angeles Chapter Sheet Metal Contractors, 246 NLRB 886 (1979) (data re- garding former unit members who might be entitled to certain pay under the bargaining agreement). I have nei- ther found nor been cited to any precedent holding that an employer must make available to the union for pur- poses of grievance investigation a human being known to be a material witness to the alleged rule violation under investigation. 24 24 This is an appropriate point at which to discuss the allegation in the complaint that the CPI was an "agent " of Respondent within the mean- ing of Sec . 2(13) of the Act. It probably is immaterial whether an "agency" relationship existed , as that legal issue ordinarily relates to questions of authority to act or imputation of conduct Here , the General Counsel evidently hopes to establish that Respondent exercised sufficient control over the CPI to be capable of making him available at the suspen- sion hearings, which perhaps really implicates his employee status The record leaves no doubt that Respondent was without authority to exercise any formal control over the CPI , either during the undercover operation or thereafter. The written agreement between Respondent and the Michigan State Police (which is also signed by a representative of ARA Services) provides that "the Michigan State Police , the St . Joseph Police Department and the Berrien County Prosecutor's Office shall de- termine the course and method of investigation to assure the maximum chance of successful criminal prosecution , but agree that the course and method of investigation selected shall not, to the extent possible , disrupt the normal operation of the plant." It further states that Respondent has agreed to provide funds to be used to "partially finance" the undercover Continued 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Viewed abstractly, this is not such an easy question to answer. If the Supreme Court in Acme thought that the furnishing of "probably relevant" information was "in aid of the arbitral process" because it would help "sift out unmeritorious claims" by "providing the opportunity to evaluate the merits of the claim," a union 's opportuni- ty to interview the employer's witnesses to the facts of an underlying grievance certainly seems to fall well within the spirit of that ratiocination. The fact that the recognition of such a union right might impose certain costs-in terms of the time of the witnesses-upon the employer does not seem material; compare the many cases in which employers have been required to incur substantial expenses in gathering written data to which the unions have been held to be entitled. E.g., Oliver Corp., 162 NLRB 813, 818 fn. 4 (1967); Yellow Cab Co., 229 NLRB 1329, 1334 (1977). On the other hand, at least under an ordinary griev- ance procedure which culminates in arbitration, the pres- ence of the arbitration provision suggests that it is that point, and no other, at which the parties to the contract contemplate that witnesses will first be made available for such investigation. Moreover, there is extant a Board ruling, arguably apposite here, which seems to constitute a specific exception to the general rules regarding access to information. In Anheuser-Busch, Inc., 237 NLRB 982, 984 (1978), the full Board held that "[r]equiring prearbitration dis- closure of witness statements would not advance the grievance and arbitration process." In so concluding, the Board "note[d] particularly" the case of NLRB v. Rob- bins Tire Co., 437 U. S. 214 (1978), which spoke of the investigation "conducted by agents of the State Police," and that the money would be delivered "directly to agent or agents of the Michigan State Police upon completion or termination of this investigation." The record shows that the figure finally arrived at was $350 per week and that Respondent made no payments to the CPI from February until June, when it wrote a check directly to the CPI in the amount of $6720 on 29 June The agreement also provides that, because public agencies are involved in the transaction, the "resources provided by the Whirlpool Corporation may be used to investigate and prosecute criminal conduct of a related and similar nature affecting other businesses in the Berrien County area " Another clause, requiring Whirlpool to maintain limited liability coverage against accidental injury for undercover agents on the same terms "as would be provided a Whirlpool Corporation employee under the Michi- gan Workers Compensation Laws," seems to emphasize the perceived nonemployee status of the CPI The record further shows that the CPJ purported to, and actually did, perform work, under ARA Supervisor Lund, for ARA Services, not Whirlpool, that the only work-related contact between Whirlpool and the CPI was when the latter first arrived at the plant and was "instruct- ed" in his ARA duties by Wagner, that contrary to Whirlpool' s stated desire and expectation , the CPI did himself participate in some unlawful activities in the plant, and that the only direct contact between a Whirl- pool employee and the CPI during the course of the investigation was when Wagner twice met with a police detective and the CPI for interim reports There is nothing in this relationship to suggest that Respondent had, by virtue of the contract or otherwise, acquired an enforceable right to produce the CPI at suspension or other noncriminal hearings , indeed, the written agreement "to initiate a criminal investigation " expressly states that "the objective of the criminal investigation shall be to obtain evi- dence for criminal prosecution" (emphasis added ) By so finding , howev- er, I do not mean to minimize the suggestion in Montague 's 27 November statement that, perhaps arising from the amicable relationship between Respondent and the authorities , "the company might have been able to obtain the presence of the undercover agent prior to the arbitration " risk entailed by premature disclosure in unfair labor prac- tice proceedings of witness statements that the party ob- taining the statements might "coerce or intimidate em- ployees and others who have given statements, in an effort to make them change their testimony or not testify at all." The Board went on to hold that requiring "either party" to a collective -bargaining relationship to furnish witness statements to the other party prior to arbitration is not required by Section 8(a)(5).25 The Board's holding was a broad one: "[W]ithout regard to the particular facts of this case, we hold that the `general obligation' to honor requests for information, as set forth in Acme and related cases, does not encom- pass the duty to furnish witness statements themselves." It would appear from such language that the Board will not require an examination into the facts of each case; if, for example, the requesting union has already been in- formed of the identity of all the prospective witnesses against the grievant, and a review of the requested state- ments discloses that no other witnesses are named there- in, Anheuser-Busch would presumably still foreclose the union's right to see the statements. It should be noted that in Anheuser, the record showed that the company had voluntarily told the union the names of two of the witnesses who had given written statements, thus already subjecting them to potential coercion and intimidation; the Board did not exempt the statements given by these two from its general ban. If this absolutist reading of Anheuser-Busch is valid, it would seem that the Anheuser-Busch rule would also pre- clude a party from demanding, as a matter of right, the opportunity to interview or take a statement from a ma- terial witness for the other side. It is true that such a wit- ness , even if provided, could not be forced to speak; he might, however, be put in an extremely awkward spot if he is told that the union has a statutory right to attempt to get a statement from him, but that he does not have to cooperate. The facts of the instant case concededly push the An- heuser-Busch analogy to its limits . Respondent had al- ready furnished the Union with brief accounts by the CPI of what he had witnessed (although that does not necessarily rule out the possibility of coercion had the Union been allowed to question him, because he might have named other witnesses to the events who could then be prevailed on to contradict him at the arbitration hearings); the CPI was not an employee of Respondent and lived elsewhere, thereby limiting his exposure to the risk of harassment; and Respondent for years had partici- pated in a prearbitration procedure in which, almost always, it had made the eyewitnesses to alleged infrac- tions available for questioning. Do these facts make a dif- ference? It is a close call, but I think they do not. I have con- cluded that Respondent was not bound by past practice to produce the CPI. I have also concluded that there is a parallel between handing over a written statement, as in Anheuser-Busch, and handing over an employee to make as Anheuser-Busch has recently been reaffirmed in Conoco Chemicals Co, 275 NLRB 39 fn 1 (1985) WHIRLPOOL CORP. a written or oral statement . Finally , I have concluded that, in Anheuser-Busch , the Board painted with a broad- gauged brush in inaugurating the "written statements" exception to the information obligation , displaying a desire to proclaim a clear , simple, and all-encompassing rule rather than one which entails detailed examination and balancing of all the particular facts . Having reached these conclusions, I have no choice, I think, but to final- ly decide that Respondent 's' failure to produce the CPI at the suspension hearings (assuming that it was capable of doing . so) was not violative of its duty to furnish infor- mation under Section 8 (a)(5).26 26 The assumption just made is a debatable one While Attorney Mon- tague wrote to the Board that "technically the company might have been able to obtain the presence of the undercover agent prior to the arbitra- tion," it has not been demonstrated that in fact Respondent would have been able to do so . As found earlier , the CPI was not an employee over whom Respondent could wield an employer 's authority (and, in any event, it appears from the evidence-the check paid to the CPI and the agreement provision that Respondent would make such payment "upon completion or termination of this investigation "-that the agreement had been concluded and along with it any possible claim that the CPI re- mained an employee of Respondent). It is implicit in the record that the Union itself made no direct effort to request the Michigan State Police to have the CPI at the suspension hearings Given these facts, it could be asserted as a separate ground for disposition that the General Counsel has failed to establish that the "information" requested was sufficiently under the control of Respondent so as to make it capable of fulfilling the re- quest in the first place . The same contention could be made with respect to the theory of violation discussed in sec . II, supra • Much would turn here on where the burden of proof of availability lies. It would seem that when the General Counsel has shown the exist- ence of "information" arguably under the control or influence of the em- ployer, the defense of inability to produce would 'shift to the employer Under Detroit Edison Ca Y. NLRB, 440 U . S. 301, 315 ( 1979), on which Respondent would rely for the principle that when an employer has a "legitimate and substantial" basis for withholding otherwise seemingly pertinent information-the basis here being the alleged statement by the police that the CPI "would be allowed to testify in any arbitrations aris- 25 I shall therefore recommend that the allegations con- tained in paragraphs 9 (f)-(g) of the complaint be dis- missed. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Charging Party is a labor organization within the meaning of Section 2(5) of the Act. 3. The General Counsel has failed to establish by a preponderance of the evidence that Respondent violated the Act as alleged in the amended complaint. On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed27 ORDER The amended complaint in Case 7-CA-24007 is dis- missed. ing out of the undercover operation but, for a variety of reasons [foot- note omitted], would not be available for any other internal labor-related purposes"-Respondent asserts that it did not violate the Act because it had the "legitimate" excuse of being incapable of producing the CPI at the pre-arbitration hearings . I have inferred , however , on the basis of Montague 's position statement , that the criminal authorities had not ex- pressed themselves in any such final and authoritative way I therefore conclude that Respondent has not shown , based on "the circumstances of the particular case ," NLRB v. Truitt Mfg. Co., 351 U.S. 149, 153 ( 1956), that its general duties to supply information or to comply with preexist- ing practices were suspended here due to impossibility of performance 27 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 pur- poses. .r.,.