DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bartlett-Collins Company and American Flint Glass
Workers of North America, AFL-CIO. Case 16-
CA 7333
August 23, 1978
DECISION AND ORDER
Upon a charge duly filed on July 15. 1977. by
American Flint Glass Workers of North America.
AFL CIO,1 herein called the Charging Party or the
Union, the General Counsel of the National Labor
Relations Board, by the Regional D)irector for Re-
gion 16, on August 17, 1977. issued and served on the
parties a complaint and notice of hearing. The com-
plaint alleged that Respondent had violated Section
8(a)(5) and (1) of the Act by refusing to bargain col-
lectively with the Union as the exclusive bargaining
representative of all the employees in an appropriate
unit by insisting to impasse on a stenographic record
of negotiations as a precondition for any further bar-
gaining sessions. On August 29, 1977, Respondent
filed an answer denying the commission of unfair
labor practices.
Thereafter, on November 10. 14, and 15, 1977. Re-
spondent, the Union, and the General Counsel. re-
spectively, entered into a stipulation of facts in which
they jointly moved to transfer this proceeding direct-
ly to the Board for findings of fact, conclusions of
law. and an Order. The parties waived a hearing be-
fore, and the making of findings of fact, conclusions
of law, and the issuance of a decision bv, an Adminin-
istrative Law Judge, and stipulated that no oral testi-
mony was necessary or desired by any of the parties.
The parties also agreed that the charge, complaint.
answer, and the stipulation of facts and exhibits at-
tached thereto constituted the entire record in this
proceeding.2
On January 12, 1978, the Board approved the stip-
ulation of the parties and ordered the case transfer-
We note that while the charge filed herein denoics the (ha ging Parts as
"American Flint Glass Workers Union of North Amelriica. AFI C(IO' the
caption appearing on the other formal papers in this poceeding refeis to the
Charging Party as "American Flint Glass Workers of Norlh America. AFL
CIO." We shall use the latter designation shenl we refer to the Charging
Part) by its formal name.
'he parties also agreed that the Board's Declslon and Order reported at
230 NLRB 144 (1977), involving Respondent and the (Charging Partl. to-
gether with the Administrative I.aw Judge's Decision. the transcript, the
record, and all exhibits. and Respondeit's slatemenl (if exceptions iard oh-
jections to the Administrative L . Judge's l)ecision in tIhat proc eedltng
were also to be made part of this proceeding. bhs referenlcc for all relesanl
purposes, but that Respondent did not therebs wal;e applicatlio, n of the
provisions of Sec. 0Itb) of the National Labohr Relations Act, s. litrened.
or its right to object to the admissihilitr of an) such transcipl ind recird.
It was also agreed that the incorporatlonm of tlie tranlscript and record in the
prior proceeding did not constitute acceptance or admission of validits bh
Respondent of the findings of fact or the conclusions of law of either the
Administrative Laws Judge or the Board in the prior proceeding
red to the Board, granting permission for the filing of
briefs. Thereafter, the General Counsel. Respondent.
and the Charging Party filed briefs.
The Board has considered the stipulation, includ-
ing the exhibits, the briefs, and the entire record in
this proceeding, and hereb\ makes the following:
FINNDIN(;S 01 FA( I
I J1 RISI)I( II()N
Respondent is, and has been at all times material
herein, a Delaware corporation, licensed to do busi-
ness in the State of Oklahoma. with its office and
principal place of business in Sapulpa, Oklahoma.
where it is engaged in the manufacture and sale of
glass tableware and other glass items. During the
past 12 months, a representative period. Respondent
manufactured, sold, and distributed goods valued in
excess of $50,000 directly to customers located out-
side the State of Oklahoma.
Respondent admits, and we find, that it is, and has
been at all times material herein, an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act. We also find that it will effec-
tuate the policies of the Act to assert jurisdiction
herein.
II. -IHE LABOR ORGANIZAIION INVOI.VtSD
The parties stipulated, and we find, that the Union
is a labor organization within the meaning of Section
2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Stipulated Facts
In an election conducted by the Board in Case 16-
RC-6545 on May 31. 1974, a majority of Respon-
dent's employees in an appropriate unit designated
the Union as their exclusive collective-bargaining
representative.I On June 10. 1974, the Regional Di-
rector for Region 16 of the National Labor Relations
Board certified the Union in that unit. On July 18.,
That unit sas
All senior machine operators, press machine operalors. press ma-
chine helpers, pace [paste] malchine operators, pace [pastel machine
helpers. tank men. tank Ilell trainees. lurnouts, floor bos. production
clerks. oilers, repairmen, senior mechanics. nechantis-repairnmen, me-
chanics-welders, machinists. machinist learners, and other employees
regularl etimpltoed im the forming department (also known as the
f ront Fnd) at Respoindent's Sapulpa. Oklahoma, plant: excluding all
other enplos)ees intiluding office clerlcal. and other plant production
and maintenance employees. mold makers, professional and technical
emplosees, watchmen, guards, head tank men. and other supersisor)
eliplosees, as defined in the Act, as amended
237 NLRB No. 106
770
BARTLETT-COI. INS COMPANY
1974, contract negotiations commenced between the
Union and Respondent and continued on seven spe-
cific dates during the ensuing months. No agreement
was reached and, on October 21, 1974, the Union
filed a charge in Case 16-CA-5809 alleging, inter
alia, that Respondent had violated Section 81a)(5)
and (I) of the Act by engaging in bad-faith negotia-
tions in an attempt to undermine the Union's status
as the employees' certified representative. Upon
complaint and hearing, Administrative Law Judge
Morton D. Friedman, on June 30, 1976. issued his
Decision in Case 16-CA 5809, finding. inter alia.
that Respondent had violated Section 8(a)(5) and (1)
of the Act, as alleged, by failing and refusing to bar-
gain in good faith with the Union. The Administra-
tive Law Judge found that throughout the course of
negotiations Respondent had repeatedly made pro-
posals which it knew could not he accepted b' the
Union, thereby creating a situation which fell short
of the requirements of good-faith collective bargain-
ing demanded by Section 8(a)(5) and (d) of the Act,
In reaching his conclusion, the Administrative L aw
Judge relied primarly on the testimony of union wit-
ness Alvarez, whose testimony, he stated, was not
materially controverted by any of Respondent's wit-
nesses.
Subsequent to the Administrative Law Judge's De-
cision, and pursuant to the Union's request. the par-
ties resumed bargaining on Jul\ 29. 1976. Present at
this meeting, at the request of Respondent's chief
negotiator, Harold Mueller, was a certified court re-
porter who was asked to record and prepare a tran-
script of that day's negotiations. The Union protest-
ed the presence of the reporter and the major part of
the meeting thereafter consisted of a heated discus-
sion over the acceptability of a court reporter at fu-
ture bargaining sessions. Although, pursuant to
agreement of the parties, the reporter recorded that
day's meeting, the parties failed to resolve the report-
er issue as it related to future bargaining sessions and
no further meetings between the parties were sched-
uled or conducted until June 1977.
On June 13, 1977, the Board issued its Decision
and Order in Case 16-CA 5809, 4 affirming in full
Administrative Law Judge Friedman's finding that
Respondent had violated Section 8(a)(5) and (1) of
the Act.
Thereafter, On June 17, 1977, counsel for the
Union advised counsel for Respondent that the
Union desired to resume collective-bargaining ses-
sions. On June 27, 1977. the Union's counsel con-
firmed the parties' agreement to renew bargaining at
meetings to be conducted on July 20, 21, and 22,
4 Baurtler( 41i,bl ('nipani. 2 30( NI RB 144 (1977)
1977. Respondent's counsel confirmed this arrange-
ment b\ letter to the Union's counsel on June 29.
1977. hen, on June 30. 1977. Respondent's counsel
wrote the Ulnion's counsel that, in view of the
Board's Decision and Order in Case 16-('A-5809
(cited at fn. 4. supra), Respondent had concluded
that "a record of bargaining under the circumstances
is both desirable and necessary to establish without
resort to credibility determinations what was said or
done by the parties in bargaining." To that end, Re-
spondent indicated that it was making arrangements
to secure the services of a court reporter for the
forthcoming bargaining sessions. While Respon-
dent's counsel stated that it would he appropriate for
the U nion to share in the costs of such transcription.
it indicated that Respondent was willing to hear the
entire expense insolved. Respondent contended that,
as the Board's recent Decision and Order turned on
credibility resolutions, it would protect all parties to
have a certified court reporter's transcript of negotia-
tions to eliminate the possibility of potential misun-
derstanding and or misquoting of exactl\ what
would transpire during the upcoming bargaining ses-
sions.
B\ letter dated July 8, 1977. the Union's counsel
notified Respondent's counsel of the Union's contin-
ued opposition to the presence of a court reporter
during contract negotiations. The Union's counsel
stressed two considerations: (I) "the presence of a
court reporter at the bargaining table tends to inter-
fere with and unduly impede negotiations and frank
discussion":; and (2) the members of the Union's bar-
gaining committee were not accustomed to judicial
or administrative proceedings where stenographic
transcripts were made hb a court reporter and. conse-
quentl\, several members of the committee were re-
luctant to express their views under such conditions.
The lUnion's counsel expressed the hope that the liti-
gation between the parties had been cocncluded:
that a mutually satisfactory agreement could now he
reached; and that Respondent's concern over poten-
tial credibility resolutions and further Board pro-
ceedings should not present an issue as far as future
bargaining sessions were concerned. However, as an
alternative. the Union proposed that each party be
permitted to record the bargaining session through
the use of its own electronic recording equipment.
The Union indicated that it did not wish to meet
under Respondent's conditions.
Respondent's counsel responded to the Union's
position b3 letter dated July 14, 1977, stating that
Respondent did not agree with the reasons advanced
by the Union for its reluctance to bargain in the pres-
ence of a court reporter: that the alternative proposal
suggested b\ the Union was unacceptable: and that
771
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent remained available for bargaining. pro-
vided that a record of the negotiations would be pre-
pared by a certified court reporter. Respondent's
counsel also noted that the Union's counsel had in-
formed him that because of Respondent's position.
there was no point in meeting and therefore Respon-
dent's counsel was releasing the dates earlier agreed
upon for resumed negotiations.
On July 15, 1977, the Union filed a charge in the
instant proceeding, alleging that Respondent had
violated Section 8(a)(5) of the Act by insisting to im-
passe upon the presence of a court reporter during
collective-bargaining negotiations between the par-
ties.
B. The Contentions of the Parties
General Counsel contends that Respondent's cur-
rent demand for the presence of a court reporter,
viewed in the context of Respondent's prior unlawful
conduct, is another attempt to frustrate the Union's
endeavors to engage in meaningful negotiations.
General Counsel asserts that the request was not
made in good faith, but rather was an attempt to
avoid Respondent's obligation to bargain. The
Union agrees with the General Counsel's contention,
and argues further that Respondent's insistence to
impasse on the presence of a court reporter, which
the Union contends is a nonmandatory subject of
bargaining, was per se a violation of the Act.
Respondent, on the other hand, contends that, in
the absence of bad faith, its demand for the pres-
ence of a court reporter was not a violation of the
Act. It argues that in the absence of evidence to indi-
cate that its request was made in bad faith the com-
plaint should be dismissed.
Analysis
In Reed & Prince Manufacturing Companv,s the
Board held that, in the absence of bad faith, a party
does not violate the Act by insisting that a court re-
porter be present to make verbatim transcript of bar-
gaining sessions. In subsequent decisions, the Board
has consistently examined the surrounding circum-
stances to determine if the insistence either on a
court reporter in negotiations or on a device to rec-
ord those sessions was made in bad faith; i.e., to
avoid or frustrate the legal obligation to bargain.6
S96 NLRB 850 (1951). enfd on other grounds 205 F.2d 131 ((
to stifle negotiations in their inception over such a
threshold issue.9
In view of the above, we find that Respondent's
demand for the presence of a court reporter during
negotiations should be accorded the status and atten-
dant characteristics of a nonmandatorv subject of
bargaining. Accordingly. we conclude that Respon-
dent, by insisting to impasse on the presence of a
court reporter during contract negotiations as a pre-
condition to such negotiations. violated Section
8(a)(5) and (1) of the Act. Having found that the
subject matter here involved is not a man dator' sub-
ject of bargaining, and that Respondent's insistence
on such subject therefore violated Section 8(a)(5). it
is irrelevant whether Respondent's insistence was in
good or bad faith. Prior Board decisions indicating to
the contrary are hereby overruled.")
CONCIU SIONS OF LA\W
1. Bartlett-Collins Company is an emploNer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
9 Indeed. we note thiat many experts in the field of labohr relallioll haze
expressed their opinion that the presence of a reporter during contract nego-
tiations has a tendency to Inhibit the free and open discussion necessalr for
conducting successful collective bargaining. Iiin echnlques oif Miediatirlon i
L.abor Disputes." lOceana Pubhlications. N Y. 19711. p h3.l authr VWalter
Maggiolo states that
Experience has taught that the presence of a stenographer or tape re-
corder does inhibit free collective bargaining Both sides talk for the
record and not for the purpose of advancing negotiations tow ard e'en-
tual settlement Each becomes oserconscious of the recording of his
remarks. The ease of expression so necessars to proper exposition of
problems is hampered. The discussion generall hbecomes stultified
And, as noted in "Practice of Collective Balrgaining." hs Beal. Wilckersh.iam
and Kienast (Richard D. Irwin. Inc.. ll1. 1976). p 217. the presence of ;
stenographer tends to formalize proceedings and reduces the spontlnilts
and flexibility that are often manifiested in successful bargaining
0Respondent contends that the Union was equalls responsible for the
parties reaching impasse on this issue. We disagree. While the L* non ex-
pressed the opinion that the presence of a court reporter 'would unduls
inhibit frank discussion, it demonstrated a willingness to cnmpronllse on the
issue by proposing that both parties be permitted Ioi utilize electrlnic rec-
ording equipment to transcribe the various negotiation sessions It did nol
insist on that condition, however. and was willing to proceed without alsn
recording being done It was Respondent. howeser. which remained ada-
mant in its refusal to engage in negotiations in the absence of a court reportl
er, a position which foreclosed the possibility of discussion on ans topic.
including that of the court reporter. In these circunimsnces we find ih.l
Respondent's conduct alone was responsible for the bargainling Impasse
which the parties reached.
2. American Flint Glass Workers of North Amer-
ica. Al I (10. is a labor organi/ation ',ithiln the
meaningin of Section 2(5) of the Act.
3. At all times relevant herein. American [Flint
Glass VWorkers of North America;. AFI CIO. has
been the exclusive rerpesentative of all the emplo\ees
in the appropriate unit set forth below for purposes
of collective bartainin g with respect to swages. rates
of pa'. hours of employment. and other terms and
conditions of emplohyment within the meaning of
Section 9(a) of the Act:
All senior machine operators. press machine
operators. press machine helpers. pace [pastel
lmachine operators. pace Ipastel mnachine
helpers, tank men. tank men trainees. turnouts.
floor bo\s. production clerks. oilers. repairmen.
senior mechanics, mechanics-repairmen. me-
chanics-welders. machinists. machinist learners.
and other employees regularly emploved in the
forming department (also known as the Front
rpcd) at the F. mployer's Sapulpa,. Oklaholna,
plant: excluding all other employees including
office clericals. other plant production and
maintenance emplo\ees. mold makers. profes-
sional and technical employees. watchmnen.
guards. head tank men, and other supervisors
employees as defined in the Act, as amended.
4. Since on or about June 30. 1977. and continuine
to date, Respondent. by insisting to impasse on the
presence of a court reporter to make a stenographic
record of negotiations as a precondition for anll fur-
ther bargaining sessions, has engaged in and is en-
gaging in unfair labor practices within the meaning
of Section 8(a)(5) and (I) of the Act.
5. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.
Til- RiEM-EDY'
Having found that Respondent has engaged in un-
fair labor practices in violation of Section 8(a)(5) and
(I) of the Act by insisting to impasse on the presence
of a court reporter to make a stenographic record of
negotiations as a precondition for an, further bar-
gaining sessions. we will order that Respondent cease
and desist from engaging in such conduct and, upon
request, bargain collectively in good faith with Amer-
ican Flint Glass Workers of North America. AFL
CIO. and its designated agents at times and places
mutually convenient concerning wages, rates of pay.
hours of employment. and other terms and condi-
tions of employment. as indicated in our Order be-
low.
773
DEC ISIONS OF NATIONAL L.ABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent.
Bartlett-Collins Company, Sapulpa, Oklahoma, its
officers, agents, successors, and assigns shall:
1. Cease and desist from:
(a) Intefering with the efforts of the Union to bar-
gain on behalf of the employees in the unit described
below, by insisting to impasse on the presence of a
court reporter to make a stenographic record of ne-
gotiations as a precondition for any further bargain-
ing sessions:
All senior machine operators, press machine
operators, press machine helpers, pace [pastel
machine operators, pace [paste] machine
helpers, tank men, tank men trainees, turnouts,
floor boys, production clerks, oilers, repairmen,
senior mechanics, mechanics-repairmen. me-
chanics-welders, machinists, machinist learners,
and other employees regularly employed in the
forming department (also known as the Front
End) at the Employer's Sapulpa, Oklahoma.
plant; excluding all other employees including
office clericals and other plant production and
maintenance employees, mold makers, profes-
sional and technical employees, watchmen,
guards, head tank men, and other supervisory
employees as defined in the Act, as amended.
(b) In any like or related manner interfering with
the efforts of the Union to bargain collectively on
behalf of the employees in the above-described unit.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, meet and bargain collectively in
good faith with the Union and its designated agents
at mutually convenient times and places with respect
to wages, rates of pay, hours, and other terms and
conditions of employment and, if agreement is
reached, embody it in a signed contract.
(b) Post at its place of business in Sapulpa, Okla-
homa, copies of the attached notice marked "Appen-
dix." " Copies of said notice on forms provided by
the Regional Director for Region 16, after being duly
signed by Respondent's representative, shall be post-
ed by Respondent immediately upon receipt thereof
and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
l In the event that this Order is enforced b? a judgment iof a U:nited
Stiles ('ourl Uf Appeals, the ,ords in the notice reading "Posted bh Order
of the National Lahor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States (Court of Appeals Enlforcing an Order of the
National Labor Relations Board."
APPENDIX
No l(-t: To EMPLO'Y, E S
PosItE) BY ORI)IR OT IliE-
NAIIONAL LABOR Ri I-AIIONS BOARD
An Agency of the United States Government
WE will NOT interfere with the efforts of the
Union to bargain on behalf of the unit employ-
ees by insisting to impasse on the presence of a
court reporter to make a stenographic record of
negotiations as a precondition for any further
bargaining sessions.
Wti Wii I NOT in any like or related manner
interfere with the efforts of the Union to bargain
collectively on behalf of our employees so repre-
sented.
Wif Wii.L. upon request, meet and bargain col-
lectively in good faith at mutually convenient
times and places with American Flint Glass
Workers of North America. AFL CIO, and its
designated agents, in the unit described below,
with respect to wages, rates of pay, hours, and
other terms and conditions of employment and,
if agreement is reached, WE WILL embody it in a
signed contract. The appropriate unit is:
All senior machine operators, press ma-
chine operators, press machine helpers, pace
[pastel machine operators, pace [paste] ma-
chine helpers, tank men, tank men trainees,
turnouts, floor boys, production clerks, oilers,
repairmen, senior mechanics, mechanics-re-
pairmen, mechanics-welders, machinists, ma-
chinist learners. and other employees regu-
larly employed in the forming department
(also known as the Front End) at the Employ-
er's Sapulpa. Oklahoma, plant; excluding all
other employees including office clericals. and
other plant production and maintenance em-
ployees, mold makers, professional and tech-
nical employees, watchmen, guards, head
tank men, and other supervisory employees as
defined in the Act, as amended.
BARI I I-CI I.INS COM1PANY
774
