Union Approach to Health and Safety: - United Steelworkers

E. I. DU PONT & CO.
903
judge found, for example, employees on each of the
safety committees sought and obtained safety awards
of greater value for employees who satisfied certain
goals. Further, as in Cabot Carbon, the safety committees
resolved employee grievances respecting safety,
even taking some grievances to the plant manager level
and above. As described above, the success of the
Antiknocks Committee in alleviating the welder’s difficulties
with the ventilation in his shop by persuading
the Respondent to move the shop; the Antiknocks
Committee’s self-advertisement as the quickest way to
get safety and health complaints resolved; the Respondent’s
provision of a fitness facility through working
with the Fitness Committee; and the presentation
to higher management of proposals regarding a tennis
court and outdoor pavilion by a unit employee committee
member constitute bargaining over mandatory
subjects of bargaining. Other committees, such as the
Central Safety Committee and Jackson Lab Committees,
did not handle grievances or solve employee-generated
problems. These committees were generally responsible
for establishing and disseminating safety programs.
If these committees had confined their activities
to such programs, I do not believe that they would
have violated Section 8(a)(2). However, these committees
also established safety incentives and awards in
connection with these programs and distributed them
to employees. In some cases, bargaining went on within
the committees as employee members sought larger
awards for their fellow employees. This common
thread of bargaining over employee compensation runs
through each of the committees. As the Union had previously
bargained over such matters, the Respondent’s
recognition of the committees as the employees’ bargaining
agent with respect to safety bonuses is especially
egregious, in that it weakened the selected representative
both in fact and in the eyes of the employees
and substituted the employer-controlled committee
for that elected by the employees.
5. Are the Dupont ‘‘safety’’ and ‘‘fitness’’
committees ‘‘employee representation committees
or plans’’ as Congress understood those terms
in 1935?
When an employer-sponsored group is at issue, the
‘‘employee representation committee or plan’’ is the
applicable category in Section 2(5)’s definition of a
labor organization. In my view, as I discussed more
extensively in Electromation, supra, the statutory formula
‘‘employee representation committee or plan’’
employers and their ‘‘employee representation committees or plans’’
was a sham that rarely if ever resulted in a fairly negotiated contract,
Congress found it necessary, in outlawing company unions, to word
the bill to cover the false bargaining between the powerless company
unions and the employers that created them. See Electromation,
supra, 309 NLRB at 990 fn. 4 (Devaney, concurring).
was, for Congress in 1935, a term of art describing a
‘‘sham’’ union through which employers usurped employees’
exclusive power to choose a bargaining representative
by establishing a ‘‘representative’’ for the
employees and dealing with that ‘‘representative.’’ In
this case, I find that the six safety committees and the
fitness committee are such ‘‘employee representation
committee[s] or plan[s].’’ In my view, three key findings
by the judge, all of which I find well supported
by the record, mandate such a finding. First, the committees
were clearly—and improperly—vested by management
with the authority to act as agents for the employees.
11 Second, DuPont caused each committee to
become a structure for negotiating employee compensation
in the form of safety bonuses, and in the
case of some of the committees, other benefits that
were clearly mandatory subjects of bargaining, with
the purpose and effect of excluding and weakening the
Union, which had previously negotiated these matters.
Third, DuPont further usurped the employees’ exclusive
right to a loyal bargaining agent by salting the
committees with members from managerial or supervisory
ranks with the power to veto any employee suggestion
or proposal. Thus, Dupont was on both sides
of the bargaining table: instead of receiving proposals
from a bargaining agent strictly loyal to the employees,
Dupont received proposals ‘‘pre-negotiated’’ by the
managerial committee members. 12 Finally, although I
do not consider this factor essential to a finding of an
8(a)(2) violation, I find the clear showing of union animus
and the deliberate bypassing and undercutting of
the Union here to clinch the matter: the six safety
committees and the fitness committees were ‘‘employee
representation committees or plans’’ like those
condemned in 1935, albeit more limited in subject
matter.
Thus, I agree with my colleagues that the Respondent
violated Section 8(a)(2) and (5) in its handling of
the seven committees, and that it did not violate the
Act in its handling of the safety conferences or safety
pauses. In my view, the difference between the two
11 I would require that an employee committee act in a representative
capacity in order to be found a statutory labor organization.
12 Thus, although I formulate the issue in different terms, I agree
with the majority that, with respect to a finding that an employer
bargained with or ‘‘dealt with’’ a committee, it does not matter in
the final analysis whether the bargaining or ‘‘dealing’’ occurred between
employees and managers on the committee or between employees
and managers outside the committee. Both situations usurp
employees’ right to choose a bargaining representative that is exclusive
and loyal. In circumstances where employees bargain or ‘‘deal’’
with manager/committee members with the right to alter or veto
their proposals, the employer has put itself on both sides of the bargaining
table and the committee is not the loyal representative of
employees. Where employee committees bargain or ‘‘deal with’’
mangers on the staff level, the employer has tacitly recognized a bargaining
agent not chosen by the employees. As in Electromation
(supra; Devaney, concurring), both forms of usurpation occurred
here.