ASARCO, Inc., Tennessee Mines Div. v. N.L.R.B.
| Decision Date | 14 November 1986 |
| Docket Number | 85-6140,Nos. 85-5987,s. 85-5987 |
| Citation | 805 F.2d 194 |
| Parties | 123 L.R.R.M. (BNA) 2985, 55 USLW 2315, 105 Lab.Cas. P 12,136, 12 O.S.H. Cas.(BNA) 2191, 1986-1987 O.S.H.D. ( 27,756 ASARCO, INCORPORATED, TENNESSEE MINES DIVISION, Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner, International Chemical Workers Union and its Local 700, Intervenor. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Wheeler A. Rosenbalm (argued), Knoxville, Tenn., for petitioner.
Russell M. Pry, International Chemical Workers Union, Akron, Ohio, for intervenor.
Elliott Moore, Deputy Associate Gen. Counsel, NLRB, Washington, D.C., Allen Freguson (argued), John Elligers, Martin M. Arlook, Director, NLRB--Region 10, Atlanta, Ga., for respondent.
Before KENNEDY and MARTIN, Circuit Judges; and PECK, Senior Circuit Judge.
This case is before the court on the application of ASARCO, Inc., to set aside the decision and order of the National Labor Relations Board (the Board) which found that ASARCO violated Secs. 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(1), (5). 1 The violations were based on ASARCO's refusal to give an industrial hygienist employed by the International Chemical Workers Union (the Union) access to its mine for the purpose of investigating a fatal accident, ASARCO's denial of the Union's request for photographs taken of the accident site, and ASARCO's failure to give the Union copies of its internal investigative accident report. For reasons stated herein, we grant enforcement of the Board's order in part, and set aside the order in part.
On July 31, 1984, Wade Fields, an ASARCO employee and member of the Union's Local 700, with which ASARCO has a collective bargaining agreement, apparently drove a tractor off a bench of ore materials and over an abrupt 30-foot drop-off inside ASARCO's Young Mine, an underground zinc mine. Co-workers found Fields after the accident to which there were no eyewitnesses. Fields died hours later on August 1, 1984.
ASARCO's safety director, Donald Ledbetter, immediately reported the accident to the Federal Mine Safety and Health Administration (MSHA). That same day an inspection team extensively investigated the accident site. The team included ASARCO representatives, the MSHA official, and Thales Miller, a member of Local 700 and its safety committee. After the on-site investigation, at which ASARCO took photographs, MSHA directed ASARCO to move the tractor to its shop area for inspection and gave ASARCO permission to clean up the accident site. The tractor was closely examined by the MSHA official, as well as by Ray Gann, the Local 700 president, and Dennis Gann, another member of the Local and its safety committee. Following this, MSHA, ASARCO, and Union representatives interviewed employees who had worked on Fields' shift.
On August 2, 1984, the Union requested permission for the Union's industrial hygienist, Thurman Wenzl, to visit the accident site. ASARCO denied this request. ASARCO did agree to the Union's subsequent request that ASARCO representatives meet with Wenzl and other Union officials to discuss the accident.
At this meeting, which followed MSHA's "closeout" conference attended by the Union, ASARCO representatives again denied the Union's request for access. The Union also requested copies of the photographs taken of the accident site. ASARCO advised the Union that the photographs would be given to the MSHA. Upon learning at the meeting that ASARCO planned to prepare its own internal investigative report of the accident, the Union requested a copy of the report. ASARCO never fulfilled the Union's request. The Union did receive a copy of the MSHA accident investigation report. The record reflects that ASARCO otherwise cooperated with the Union in answering questions about the accident.
The Union filed unfair labor practice charges alleging that ASARCO violated Secs. 8(a)(1) and (5) of the Act by refusing the Union's requests for access and information. After an evidentiary hearing, the administrative law judge (ALJ) found that ASARCO had violated the Act. By decision and order dated March 14, 1985, the ALJ ordered ASARCO to grant access to the Union hygienist and to turn over its photographs and internal investigative report. A three-member panel of the Board affirmed the ALJ's decision and adopted the ALJ's order as its own. ASARCO's petition for review followed. The Board filed a cross-petition for enforcement of its order. The Union has intervened.
On review the Board's findings of fact will be upheld if they are supported by substantial evidence on the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951). The Board's application of the law to particular facts is also reviewed under the substantial evidence standard. The Board's reasonable inferences may not be displaced on review even though the reviewing court might have reached a different conclusion had it considered the matter de novo. NLRB v. United Insurance Co. of America, 390 U.S. 254, 260, 88 S.Ct. 988, 991, 19 L.Ed.2d 1083 (1968); Universal Camera, 340 U.S. at 488. Furthermore, the court must give deference to the Board's determinations regarding the employer's duty to provide requested information to the Union. E.I. DuPont de Nemours & Co. v. NLRB, 744 F.2d 536, 538 (6th Cir.1984); Salt River Valley Water Users' Association v. NLRB, 769 F.2d 639, 641-42 (9th Cir.1985); Oil, Chemical and Atomic Workers Local Union No. 6-418 v. NLRB, 711 F.2d 348, 360 (D.C.Cir.1983); NLRB v. Jaggars-Chiles-Stovall, Inc., 639 F.2d 1344, 1347 (5th Cir.), cert. denied, 454 U.S. 826, 102 S.Ct. 116, 70 L.Ed.2d 100 (1981). With these standards of review in mind, we turn to the merits of the case.
The Board applied the balancing test set forth in Holyoke Water Power Co., 273 NLRB 1369, enforced sub nom. NLRB v. Holyoke Water Power Co., 778 F.2d 49 (1st Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 3274, 91 L.Ed.2d 565 (1986), in determining that ASARCO should have granted the Union's industrial hygienist access to the accident site. Under Holyoke the Board:
balance[s] the employer's property rights against the employees' right to proper representation. Where it is found that responsible representation of employees can be achieved only by the union's having access to the employer's premises, the employer's property rights must yield to the extent necessary to achieve this end. However, the access ordered must be limited to reasonable periods so that the union can fulfill its representation duties without unwarranted interruption of the employer's operations. On the other hand, where it is found that a union can effectively represent employees through some alternate means other than by entering on the employer's premises, the employer's property rights will predominate, and the union may properly be denied access.
273 NLRB at 1370. The Holyoke standard is drawn from NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112, 76 S.Ct. 679, 684, 100 L.Ed. 975 (1956), which balances the Sec. 7 rights of self-organization 2 that are implicated by access requests of non-employee union organizers against the employer's interest in preventing invasion of its private property rights. In Holyoke the Board also expressly overruled an earlier line of cases, including Winona Industries, Inc., 257 NLRB 695 (1981), in which the Board treated requests for access as simple information requests. 273 NLRB at 1370. It is well settled that "[t]he duty to bargain collectively, imposed upon an employer by Sec. 8(a)(5) of the National Labor Relations Act, includes a duty to provide relevant information needed by a labor union for the proper performance of its duties as the employees' bargaining representative." Detroit Edison Co. v. NLRB, 440 U.S. 301, 303, 99 S.Ct. 1123, 1125, 59 L.Ed.2d 333 (1979) (citations and footnote omitted). In evaluating an employer's obligation to fulfill the union's information requests, the Board and courts apply a "discovery type standard," under which the requested information need only be relevant and useful to the union in fulfilling its statutory obligations in order to be subject to disclosure. NLRB v. Acme Industrial Co., 385 U.S. 432, 437, 87 S.Ct. 565, 568, 17 L.Ed.2d 495 (1967); General Motors Corp. v. NLRB, 700 F.2d 1083, 1088 (6th Cir.1983).
ASARCO argues that the Union could satisfy its representation duties and accompanying need for information relevant to Field's accident and the safety issues raised thereby through means other than mine access--notably, the MSHA report and interviews with Union representatives who participated in the on-site investigation. In light of these alternate sources of relevant information, ASARCO contends that the Union did not meet the Holyoke test for access to employer property. 3
On the other hand, the intervenor Union asks this court to enforce the Board's order, but under the more liberal standard set forth in Winona, 257 NLRB at 697-98. The Union argues that Holyoke is flawed and should be overruled because it is premised upon Babcock & Wilcox, supra, which deals with Sec. 7 rights of self-organization and the employer's duty under Sec. 8(a)(1) to refrain from interfering with those rights and does not involve the employer's affirmative duty under Sec. 8(a)(5) to bargain with the employer's representative. Because the outcome in this case is the same under either test, we decline to decide whether Winona or Holyoke is the proper test to be applied in situations involving the bargaining representative's request for access to employer property in order to gather information relevant to its representative responsibilities. As noted by the First Circuit in Holyoke, "[i]f the union's interest in obtaining information is substantial, and the employer's...
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