Union Approach to Health and Safety: - United Steelworkers

E. I. DU PONT & CO.
901
$100 savings bonds). Employees on the committees
pressed for larger awards for their fellow employees;
the committees also sought higher awards from management.
During the operation of the committees, the
Respondent never bargained with the Union over the
amounts of the safety awards.
In 1989, in the course of contract negotiations, the
Union proposed that a joint labor-management health
and safety committee be established to discuss and negotiate
such issues and to investigate and attempt to
prevent accidents. The Union proposed 21 items concerned
with employee safety. The Respondent ‘‘commended
the Union for its interest in the subject,’’ but
told the Union that discussions on health and safety
should take place outside contract bargaining. When
the Union insisted that bargaining on health and safety
issues was part of contract negotiations, the Respondent
rejected the Union’s proposals, characterizing them
as ‘‘not . . . additive to our business.’’ The Respondent
offered no counterproposal on the subject of a safety
committee.
Management initiated the formation of the Fitness
Committee in late 1989 or early 1990, with employee
members chosen to represent various areas of the
plant. The Respondent admits that the manager in
charge told an employee member that the committee
sought a ‘‘representative’’ from each area, and the
judge credited an employee member’s testimony that
he asked why certain employees were on the committee
and was told that their presence, regardless of
their personal interest in fitness, gave the committee a
more representative cross-section of plant employees.
The Union was not notified of the committee’s formation.
Before the committee was formed, the Union had
unsuccessfully proposed the establishment of an employee
fitness facility comparable to the one at another
DuPont plant. As the judge found, the Respondent rejected
the proposal on the grounds that it was not interested.
In a memo dated September 26, 1989, a management
assistant recommended that the employee activities
budget be increased $10,000 for employee
events. The memo stated that the Respondent’s practice
of not funding employee teams ‘‘just drives employees
to the Union for assistance—I would like to
change that.’’
In January 1989 the Respondent approved the Fitness
Committee’s proposal for outdoor facilities at a
former parking lot and budgeted money for a jogging
track. The minutes of the committee’s May 11, 1989
meeting indicates that the Respondent rejected an employee
member’s proposal for tennis courts as too expensive.
An employee member pressed for tennis
courts through the electronic mail system in a June
1989 message sent to plant managers and other management
personnel and committee members. In the
summer of 1989, the Respondent added picnic tables
and bathrooms. When employee committee members
proposed a horseshoe pit and a volleyball court, the
Respondent implemented both proposals. In January
1990 employee member Ebert proposed the addition of
an outdoor pavilion and two tennis courts to the committee.
The committee agreed and a manager on the
committee suggested that Ebert make a presentation to
plant management for funding. Ebert made the proposal,
which was denied on the grounds that the budget
contained no funds for the projects.
3. Did the Respondent dominate the
administration of Deepwater’s six safety
committees and the fitness committee?
I agree with my colleagues and the judge that the
Respondent dominated the operation of the seven committees.
The Respondent started the committees; the
suggestions, proposals, and actions of the committees
depended on the approval of the management members;
the implementation of such proposals and plans
depended entirely on the Respondent’s will; the Respondent
maintained complete control over the continued
existence of the committees, and, in some cases,
set the agendas for the committees. DuPont’s portrait
at the hearing and in its brief of committees formed
solely as management tools to solve narrow management
problems, some of which, in fact, had grown out
of previously all-management structures virtually concedes
this ‘‘domination.’’ 8 Further, although I am open
to persuasion by the right set of facts, I find it difficult
to conceive of a situation where the very existence of
an employee committee depends on the will of the employer
that would not merit a finding that the employer
‘‘dominated’’ the committee.
I hasten to add, however, that an employer’s domination
of the administration of an employee committee
is not, taken alone, an unfair labor practice. In my
view, the concerns voiced by amici about the effect of
Section 8(a)(2) on legitimate employee participation
plans relate almost entirely to committees whose usefulness
depends on a type of employer domination, in
the sense that an employer brings employees together
8 Even under the Respondent’s cited standard, a finding of domination
is virtually inescapable here. The Respondent cites Hertzka &
Knowles v. NLRB, 503 F.2d 625, 630 (9th Cir. 1974): ‘‘the question
is whether the organization exists as the result of a choice freely
made by the employees, in their own interests and without regard
to the desires of their employer . . . or whether the employees . . .
supported the organization . . . because they knew their employer
desired it . . . .’’ In this case there is no question that the organizations
did not exist as the result of the employees’ choice. The organization
which the employees had empowered to speak for them on
the issues of safety and health was the Union. For better or worse,
the fact that management can pick the employees who participate,
countermand any decision of a committee, and dissolve the employee
committee at will implies, as a necessary corollary, that employees
are not exercising free choice over the operation of the committee.