Union Approach to Health and Safety: - United Steelworkers

E. I. DU PONT & CO.
909
b. The 10(b) defense
The Company contends in it brief (at 128–129) that the
8(a)(2) allegations relating to the six safety committees and
the Fitness Committee should be dismissed because the underlying
charges filed in March and April 1990 were untimely
under Section 10(b) of the Act.
Regarding the safety committees, as discussed above, the
General Counsel has alleged only conduct occurring since
the beginning of the 10(b) 6-month limitation periods in September
and October 1989. I therefore reject the contention
that the underlying charges were untimely.
Regarding the allegations that the Company unlawfully
dominated the administration of the Fitness Committee after
the close of the May 2–4, 1989 Design Team trial, I agree
with the General Counsel that the underlying charge was
timely filed.
As held in A & L Underground, 302 NLRB 467, 468
(1991):
[T]he Board’s long-settled rule [is] that the 10(b) period
commences only when a party has clear and unequivocal
notice of a violation of the Act. . . . Further, as is
the case with the 10(b) defense generally, the burden of
showing that the charging party was on clear and unequivocal
notice of the violation rests on the respondent.
If the Union had been on notice of the alleged violation,
the limitation period for the Fitness Committee would have
begun September 22, 1989 (6 months before the March 19
charge was served March 22, 1990). The Company’s interoffice
management memoranda dated September 18 and 27,
1989 (5 days after September 22), indicate, however, no
company awareness at that time of the Union’s being ‘‘informed
in any manner concerning the Fitness Committee’s
functions and or activities’’ (G.C. Exhs. 30, 31; Tr. 1079–
1082).
The Union’s first knowledge of even the existence of the
Fitness Committee came shortly after the committee sent out
its September 5, 1989 electronic mail message (G.C. Exh.
34B; Tr. 1133), asking for volunteers to ‘‘Bring Your Own
Rakes and Shovels’’ for ‘‘our latest undertaking,’’ making
flower beds at the C Corral, a former parking lot (Tr. 482,
1084). The Union had been informed in April 1989 that the
Company ‘‘intended to build a track facility and to provide
some additional items for recreation in C Corral’’ (G.C. Exh.
36, par. 11(e); R. Exh. 29; Tr. 1009–1020, 1153), but nothing
about the Fitness Committee.
The Union sent the Company a letter dated September 12,
1989 (G.C. Exh. 34A), stating that it ‘‘has no knowledge of
what this committee is’’ and ‘‘requesting immediate information’’
about it. There is no evidence that the Company provided
the information until the following March (G.C. Exhs.
3A and 3B at 6).
I find that the Company has failed to meet its burden to
show that the Union was on clear and unequivocal notice of
the alleged violation before the Company’s response in
March 1990, the same month the Union filed the charge. I
therefore reject the Company’s contention that the underlying
charge was untimely.
c. Waiver defense
Without citing any applicable authority that waiver is a defense
to an 8(a)(2) violation, the Company contends in its
brief (at 130–133) that the Union has waived the alleged
8(a)(2) violations. I reject this contention as unfounded.
The Company contends (at 130–131) that the Union
waived any objections to the safety committees by failing to
specifically request their abolition in the company-union negotiations
on October 31, 1989 (when the Union proposed a
joint labor-management health and safety committee). It further
contends (at 132) that the Union’s ‘‘Broadly worded letters
objecting to PEP-style committees as ‘illegal’ during the
pendency’’ of the earlier Design Team case and after Judge
Pacht’s ‘‘resolution of that charge,’’ should not be regarded
as ‘‘specific objections to the safety-related committees.’’ In
making these contentions the Company overlooks the
Union’s written December 22, 1988 request, discussed above,
that the Company disband the ‘‘safety and health committees.’’
The Company also contends (at 131–132) that ‘‘it is clear
the [Union] has acceded to, and been involved in, the very
system it now objects to in the Antiknocks (Petchem) Area
and other units/areas with safety-related committees.’’ It contends
that Leslie Morris (the Union’s president in 1987, Tr.
1615) ‘‘expressly agreed’’ to the formation of the Antiknocks
Area Safety Committee, which would include bargaining unit
personnel. In explanation, the Company asserts that Morris
had no objection if the committee (quoting from Morris’ testimony)
‘‘merely [sought] input from the bargaining unit
people related to how to better perform in the safety area.’’
Again, as in its above argument about OSHA guidelines
(ignoring the relevant sentence, ‘‘Joint labor-management
committees are most common’’), the Company omits and ignores
a relevant portion of Morris’ testimony. Over 70 pages
earlier in its brief (at 58) the Company did include the relevant
portion, as follows (Tr. 1617):
We told them that as long as they did not infringe
on any of the bargaining rights of the collective bargaining
agreement, that if they were merely seeking
input from the bargaining unit people relative to how
to better perform in the safety arena, we had no objections.
[Emphasis added.]
The Company also contends (at 131) that union stewards
‘‘actively participated as members’’ of the Antiknocks Area
Safety Committee ‘‘from 1987 forward.’’ It is true that four
union stewards (Donald Hymer, Philip Muldoon, David
Muntz, and Wayne Serfass) volunteered to be members in
1987 when the Company established the committee (Tr. 165,
171–172, 696). The Company admits, however, that stewards
served on the committee only as individual employees and
did not speak for the Union (Tr. 191–192).
Three of these stewards had left the committee by early
1990 (Tr. 170–171, 328–330). On March 26, 1990, the fourth
one (Muntz) was terminated as a union steward ‘‘Because I
wouldn’t get off the safety committee’’ (Tr. 700, 730; R.
Exh. 40 at 18). Another committee member (Grady
Fryberger) was appointed steward on January 30, 1989. He
was not, however, recognized as a steward after May 15,
1989. His name was inadvertently retained on the stewards,