Meeker Cooperative Light & Power Assn.

National Labor Relations Board - Administrative Judge Opinions

Dec 17, 2003

18-CA-016924 (N.L.R.B. Dec. 17, 2003)

JD–139–03
Litchfield, MN
UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

MEEKER COOPERATIVE LIGHT AND POWER
ASSOCIATION
and
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, IBEW LOCAL 160
Pamela W. Scott, Esq., of Minneapolis, MN,
for the General Counsel.
Richard A. Williams Jr., Esq., of Roseville, MN,
for the Charging Party.
George E. Warner, Senior Consultant, of Plymouth, MN,
for the Respondent-Employer.
DECISION
Case 18-CA-16924
Statement of the Case
Bruce D. Rosenstein, Administrative Law Judge. The parties agreed to waive a trial and
stipulate the case directly to an administrative law judge for issuance of a decision.1 A
complaint and Notice of Hearing (complaint) issued on September 15, 20032 by the Acting
Regional Director for Region 18 of the National Labor Relations Board (the Board). The original
charge was filed by International Brotherhood of Electrical Workers, IBEW Local 160 (the
Charging Party or Union) alleging that Meeker Cooperative Light and Power Association (the
Respondent or Employer), has engaged in certain violations of Section 8(a)(1) and (5) of the
National Labor Relations Act (the Act). The Respondent filed a timely answer to the complaint
denying that it had committed any violations of the Act.
Issues
The complaint alleges that Respondent violated Section 8(a)(1) and (5) of the Act by its
refusal to furnish the Union with necessary and relevant information concerning contracting out
bargaining unit work.
On the entire stipulated record, and after considering the briefs filed by the General
Counsel, Charging Party and the Respondent, I make the following
1 By Order dated October 9, 2003, the hearing was postponed indefinitely.
2 All dates are in 2003 unless otherwise indicated.
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Findings of Fact
I. Jurisdiction
The Respondent is a cooperative association engaged in the operation of an electrical
cooperative providing retail electrical sales to its members from its facility in Litchfield,
Minnesota, where it annually derived gross revenues in excess of $1,000,000 and purchased
and received products, goods and services valued in excess of $50,000 from points outside the
State of Minnesota. The Respondent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. The Facts
The Respondent is engaged in the retail sale of electricity to its members out of its
facility in Litchfield, Minnesota. For approximately 20 years, the Union has been the exclusive
collective-bargaining representative of an appropriate unit of Respondent’s employees including
all full-time and regular part-time journeyman and apprentice lineman, groundmen, and
foreman. The parties are subject to a current collective bargaining agreement effective from
September 16, 2000 to September 15, 2005 (Jt. Exh. 1).
In January 2003, the Union made an inquiry to Respondent about some subcontracting
work that it had been doing during that month.
On February 7, the Union sent two letters to Respondent concerning whether bargaining
unit work had been contracted out (Jt Exh. 2 and 3). These letters also constituted grievances
alleging the loss of bargaining unit work. On February 20, Respondent denied the grievances
(Jt Exh. 4).
On March 24, the Union sent a letter to Respondent requesting information about the
subcontracting (Jt Exh. 5). The request covered the period 1995 to the present. Respondent
replied by letter dated March 25, denying the request for the information (Jt Exh. 6). On April
14, Union Counsel wrote the Respondent and narrowed the information request to correspond
to the term of the parties’ collective bargaining agreement. After the Board of Directors
considered the matter, Respondent in June 2003, notified the Union that the information
requested in March that was later modified in April 2003, would not be provided.
B. The Position of the Parties
The parties agree that there has been a past practice of subcontracting, however they
disagree to its extent. The Respondent argues that it has always had the right to subcontract all
types of work without limitation. The Union counters that while the Respondent has the right to
subcontract certain types of work, it is not permitted to subcontract work that normally is
performed by bargaining unit employees. Indeed, the Union asserts that on two occasions, July
2002 and January 29, the Respondent has subcontracted work to outside contractors that was
within the jurisdiction of the parties’ agreement and should have been performed by bargaining
unit employees.
The Union argues that it cannot resolve the question of whether bargaining unit work has
been subcontracted in violation of the parties’ agreement and /or past practice, unless it is
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provided with the requested information. Thus, the Union needs the information to decide how
or whether to proceed with the subject grievances or any other grievance.
The Respondent assets that the grievance procedure requires that the Union identify a
specific provision of the parties’ agreement to have been violated, and that the subject
grievances do not meet this requirement. Further, the Respondent denies that the parties’
agreement has been violated because the work subcontracted by it on the two occasions, if it
occurred, was not a violation of the parties’ agreement or past practice.
C. Analysis
In Fiberboard Paper Products Corp. v. NLRB, 379 U.S. 203 (1964), the Supreme Court
upheld the Board’s ruling that an economically founded decision to subcontract maintenance
work was a mandatory subject of bargaining. Likewise, the Board has held that a union is
entitled to requested information “if there is a probability that such data is relevant and will be of
use to the union in fulfilling its statutory duties as the employees’ exclusive bargaining
representative.” Southern Nevada Builders Assn., 274 NLRB 350, 351, (1985). This liberal
discovery-type standard nevertheless contains an important limitation: the data must be of use
in fulfilling statutory duties. The “duty to furnish . . . information stems from the underlying
statutory duty imposed on employers and unions to bargain in good faith with respect to
mandatory subjects of bargaining.” Cowles Communications, Inc., 172 NLRB 1909 (1968). In
Daimler Chrysler Corp., 331 NLRB 1324 (2000), enfd. 288 F.3d 434 (D.C. Cir. 2002), the Board
held that the employer’s duty to bargain includes the obligation to provide information that a
union needs for the processing of grievances and the investigation of potential grievances.
The arguments advanced by the Respondent in the subject case are misplaced. In this
regard, the Respondent does not address the necessity or relevancy of the requested
information. Rather, the Respondent’s reasoning for not providing the information is that the
underlying grievances do not have merit.3 While ultimately that may be the case once the
grievances are heard by an arbitrator under the parties’ grievance and arbitration procedure, the
issue in this case is whether the Union needs the information so it intelligently can determine
whether it should proceed to arbitration or file additional grievances. In these circumstances, I
find that the information is relevant and necessary to the Union’s interest in policing the
Respondent’s compliance with the terms of the parties’ collective bargaining agreement.
Crowley Marine Services, 329 NLRB 1054, 1060 (1999), enfd. 234 F.3d 1295 (D.C. Cir. 2000).
Accordingly, the Respondent has an obligation to supply the requested information and its
refusal to do so violates Section 8(a)(1) and (5) of the Act. Reiss Viking, 312 NLRB 622 (1993).
Conclusions of Law
1. Respondent is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3 While the Respondent argues that since the parties’ agreement does not contain an article
relating to contracting out work, it has the absolute right to contract out work as long as the
action is performed in good faith, it ignores Article III of the agreement that covers working rules,
hours, wages and other definite conditions of employment for all employees covered by the
agreement. Thus, the grievances concern a controversy arising over the interpretation of the
parties’ agreement and involve a mandatory subject of bargaining.
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3. At all relevant times, the Union has been the exclusive collective-bargaining
representative of the following employees of Respondent in an appropriate bargaining unit
within the meaning of Section 9(b) of the Act.
All full-time and regular part-time journeyman and apprentice lineman,
groundmen, and foremen employed by Respondent at or out of its
Litchfield, Minnesota facilities: excluding office clericals, and guards
and supervisors as defined in the Act, as amended.
4. By failing and refusing to furnish the Union with the information requested in its March
24, as subsequently modified on April 14, 2003, information requests, the Respondent has
failed to fulfill its statutory obligations and has thereby engaged in, and is, engaging in unfair
labor practices within the meaning of Section 8(a)(1) and (5) of the Act.
Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I find
that it must be ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended4
ORDER
The Respondent, Meeker Cooperative Light and Power Association, Litchfield,
Minnesota, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with International Brotherhood of Electrical
Workers, IBEW Local 160, by refusing to furnish them with the information
requested in its March 24 and April 14, 2003 information requests regarding
whether certain bargaining unit work was contracted out.
(b) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Furnish International Brotherhood of Electrical Workers, IBEW Local 160,
with the information it requested in its March 24 and April 14, 2003
information requests regarding whether certain bargaining unit work was
contracted out.
(b) Within 14 days after service by the Region, post at its facility in Litchfield,
4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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Minnesota copies of the attached notice marked “Appendix.”5 Copies of the
notice, on forms provided by the Regional Director for Region 18, after being
signed by the Respondent's authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employees employed
by the Respondent at any time since March 24, 2003.
(c) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.
Dated, Washington, D.C. December 23, 2003
_____________________
Bruce D. Rosenstein
Administrative Law Judge
5 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in
the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD”
shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
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APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union

Choose representatives to bargain with us on your behalf

Act together with other employees for your benefit and protection

Choose not to engage in any of these protected activities

WE WILL NOT in any like or related manner interfere with restrain or coerce you in the exercise
of the rights guaranteed you by Section 7 of the Act.
WE WILL NOT refuse to provide the Union with requested information relevant to the Union’s
performance of its collective-bargaining duties as your exclusive bargaining representative.
Meeker Cooperative Light and Power Association
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
330 Second Avenue South, Towle Building, Suite 790, Minneapolis, MN 55401-2221
(612) 348-1757, Hours: 8 a.m. to 4:30 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (612) 348-1770.
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