T.U. Electric

National Labor Relations Board - Board Decisions

Mar 9, 1992

306 N.L.R.B. 654 (N.L.R.B. 1992)

654
306 NLRB No. 121
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On November 7, 1991, the Respondent filed a motion to reopen
the Record to submit evidence that the Union, by letter to the Re-
spondent dated January 10, 1991, withdrew its grievance concerning
employee Calvin Jackson’s discharge. On November 29, 1991, the
General Counsel filed an opposition to the Respondent’s motion, and
on December 18, 1991, the Respondent filed a reply to the General
Counsel’s opposition.
We deny the Respondent’s motion as untimely in light of the Re-
spondent’s receipt of the Union’s letter 9 months before the judge
issued his decision and 10 months before its motion to the Board.
We shall, however, leave to the compliance stage of this proceeding
a determination of whether the Union effectively withdrew its griev-
ance concerning Jackson’s discharge and the effect of such with-
drawal on the affirmative relief provisions of our Order.
1 Also known as Texas Utilities Electric Company.
2 Sec. 8(a)(1) of the Act provides that, ‘‘It shall be an unfair labor
practice for an employer . . . to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in section
7:. . . .’’
Sec. 7 of the Act provides that,
Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, and shall also have the right to
refrain from any or all such activities except to the extent that
such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as au-
thorized in section 8(a)(3).
3 Sec. 8(a)(5) of the Act provides that, ‘‘It shall be an unfair labor
practice for an employer . . . to refuse to bargain collectively with
the representatives of his employees, subject to the provisions of sec-
tion 9(a). . . .’’
4 To the extent that the affirmative defenses place factual matters
into controversy they are implicitly dealt with herein. To the extent
that the it is alleged that the complaint fails to state a claim on
which relief can be granted the affirmative defense is hereby over-
ruled, and, accordingly, dismissed.
T.U. Electric and International Brotherhood of
Electrical Workers, Local 2337. Case 16–CA–
14381
March 9, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On September 30, 1991, Administrative Law Judge
Frederick C. Herzog issued the attached decision. The
Respondent filed exceptions and a supporting brief,1
and the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, T.U. Electric, Dallas,
Texas, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
Elizabeth J. Kilpatrick, Esq., for the General Counsel.
David C. Lonergan and Kimberly A. Nickolay, Esqs.
(Worsham, Forsythe, Sampels & Woolridge), of Dallas,
Texas, for the Respondent.
Yona Rozen, Esq. (Gillespie & Rozen, P.C.), of Dallas,
Texas, for the Charging Party.
DECISION
STATEMENT OF THE CASE
FREDERICK C. HERZOG, Administrative Law Judge. This
case was heard by me in Fort Worth, Texas, on August 9,
1990, and is based on a charge filed by International Broth-
erhood of Electrical Workers, Local 2337 (the Union) on
January 9, 1990, alleging generally that T.U. Electric (Re-
spondent)1 committed certain violations of Section 8(a)(1)
and (5) of the National Labor Relations Act (the Act). On
June 20, 1990, the Regional Director for Region 16 of the
National Labor Relations Board (the Board) issued a com-
plaint and notice of hearing alleging violations of Section
8(a)(1)2 and (5)3 of the Act. Respondent thereafter filed a
timely answer to the allegations contained within the com-
plaint, denying all wrongdoing, and asserting certain affirma-
tive defenses.4
All parties appeared at the hearing and were given full op-
portunity to participate, to introduce relevant evidence, to ex-
amine and cross-examine witnesses, to argue orally, and file
briefs. Based on the record, my consideration of the briefs
filed by counsel for the General Counsel, counsel for the
Charging Party, and counsel for Respondent, and my obser-
vation of the demeanor of the witnesses I make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, the answer admits, and I find that
Respondent is a Texas corporation, with an office and place
of business in Dallas, Texas, and a facility in Tatum, Texas,
where at all times material it has been engaged in the busi-
ness of generating, transmitting, distributing, and selling elec-
trical energy as a public utility; that during the 12-month pe-
riod ending with the issuance of the complaint herein, in the
course and conduct of its business operations, it purchased
and received at its facility mentioned above products, goods,
and materials valued in excess of $50,000 directly from
points outside the State of Texas.
Accordingly, I find and conclude that Respondent is now,
and at all times material herein has been, an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
655T.U. ELECTRIC
5 As both were amended at trial.
II. THE LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that
the Union is now, and at all times material has been, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
The complaint alleges that Respondent has failed and re-
fused to bargain collectively in good faith by withholding in-
formation requested of it by the Union. The Union asserts
that the information is necessary and relevant to the proc-
essing of grievances, while Respondent asserts that its refusal
and failure, to the extent they have occurred, are privileged
by its legitimate business interests.
B. Background
For over 16 years the Union and Respondent have been
parties to successive collective-bargaining agreements, as the
Union represents Respondent’s employees at facilities located
at Fairfield, Mt. Pleasant, Tatum, and Franklin, Texas. The
most recent had a term of November 11, 1989, to November
10, 1990. The complaint alleges, the answer admits,5 and I
find that at all times material herein the following employees
of Respondent constituted a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b)
of the Act:
Included: All production and maintenance employees
regularly engaged in employment at [Respondent’s]
plants in Fairfield, Mt. Pleasant, Tatum and Franklin,
Texas, and job classifications and wage rates as out-
lined in Article XI of the collective bargaining agree-
ment between the [Respondent] and [the Union], and
any production or maintenance employees whose job
classification might be established during the tenure
of said agreement.
Excluded: Office clerical employees, guards and super-
visors within the meaning of the Act.
C. The Facts in Issue
The Union’s steward and former assistant business man-
ager, Bobby Pauler, who is also an employee of Respondent,
testified that it is his duty as steward to process grievances,
engage in contract negotiations with Respondent and, gen-
erally, serve as a conduit for communication between Re-
spondent and the Union. He also stated that he filed a griev-
ance concerning the discharge of an employee named Calvin
Jackson on June 30, 1989, and that, on or about July 13,
1989, Respondent denied the grievance.
Thus, on July 19, 1989, the Union made a written request
for information from Respondent concerning the discharge.
On August 2, 1989, Respondent supplied the Union with a
27-page response.
On or about August 8, 1989, the Union made a further re-
quest for information, indicating that this second request was
occasioned by the response to its first request. This request
read, in pertinent part, as follows:
The Union is requesting the following information,
in response to information received from the previous
request for information, dealing with Mr. Jackson’s ter-
mination.
1) A copy of the Payroll Change Authorization form
which was used to stop Mr. Jackson’s pay because of
his termination.
2) A copy of the documentation on the following
discipline Mr. Jackson was to received (sic). Including
but not necessarily limited to letters, memos, and super-
visor’s notes.
2–27–83 Step 1
6–05–88 Step 1 Safety violation Richard Gregory
3) A copy of the documentation on the following
counselling sessions Mr. Jackson was to have received.
Including but not necessarily limited to letters, memos,
and supervisor’s notes.
12–19–82 Counseled Sleeping Billy Conway
12–19–82 Counseled Job Neglect Billy Conway
12–19–82 Counseled Job Neglect Billy Conway
4–12–87 Counseled Tardiness Richard Gregory
7–26–87 Counseled Tardiness Richard Gregory
2–06–88 Counseled Tardiness Richard Gregory
4–11–88 Counseled Tardiness Richard Gregory
6–24–88 Counseled Word Procedure Dennis Tucker
Please provide this information to the Union by Au-
gust 15, 1989.
Pauler testified that the reason he asked for additional in-
formation was because of (a) the sheer number of incidents
listed, (b) without documentation he thought was appropriate
to determine the background of each incident, (c) the fact
that there were three incidents on the same day, and (d) he
felt it necessary to verify that the alleged counseling sessions
had in fact been conducted. Amplifying, he testified that such
information would help the Union to determine whether or
not to continue to process the grievance, apparently, for in-
stance, in deciding whether or not to take it to arbitration.
Pauler admitted that similar requests for information had
been made by the Union in the past, and always similarly
denied by Respondent. He stated that that the Union had
taken no further action about the denials, except to take up
the matter and discuss the denial at the next stage of the
grievance procedure. I infer therefrom that, in at least some
instances, the Union found whatever it subsequently received
adequate for its purposes. He testified, however, that there
were neither contractual nor verbal understandings between
the Union and Respondent that the Union either agreed with
or acquiesced in Respondent’s position that such materials
are privileged. He denied that the Union has ever orally or
in writing waived its position that it was entitled to such in-
formation as is contained in the supervisor’s notes.
Pauler admitted that he possibly could have gotten some
of the information he sought by discussing it with the em-
ployee, the affected supervisor, or even with Bannerman; he
also stated, however, that he would have no way of knowing
656 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
if, in speaking to a supervisor, or Bannerman, he was being
given the same information as that set forth in the super-
visor’s notes unless he also were permitted to see the super-
visor’s notes. Pauler noted that Respondent has never offered
to provide the supervisors for interviews, and that
Bannerman has never offered to provide the information in
some alternative form.
On or about August 15, 1989, Respondent wrote to the
Union, stating:
In response to your request of August 8, 1989, en-
closed you will find a copy of the final Payroll Change
Authorization on Mr. Jackson. Documentation on Nos.
2 and 3 is privileged information and it is felt that the
Union is not entitled to it.
It is undisputed that Respondent maintains a progressive
disciplinary system. The system has four steps, not nec-
essarily followed sequentially, starting with an oral reminder
and concluding with discharge. Additionally, Respondent’s
supervisors have engaged in the practice of ‘‘counseling’’
employees, for matters of discipline short of the formal 4
steps.
Respondent’s personnel supervisor, Bannerman, and Man-
ager of Labor Relations Dick, however, admitted that super-
visors are consulted, and a ‘‘consensus’’ is sought from an
employee’s present and past supervisors when considering
whether or not to impose severe discipline, and whether or
not extenuating or mitigating circumstances were present.
In this respect, Respondent’s position is that supervisors
are ‘‘encouraged’’ to make notes of incidents with those they
supervise, such as oral disciplines and/or counseling sessions.
As Dick testified, he tells supervisors that, unless they have
photographic memories, he ‘‘recommends’’ that they take
notes. This is evidently thought helpful to the supervisor’s
memory, for example in an employee’s annual evaluation, as
supervisors are rotated among employee groups of about 10
to 15 employees. Bannerman also admitted that such notes
have sometimes been used in past arbitration hearings, de-
spite his attempts to portray the practice as merely voluntary
and private on the part of the individual supervisors; he was
unable to recall the name of any supervisor who failed to
keep such notes, however.
Notwithstanding its objections to producing the materials
requested, at trial Respondent produced certain writings, pur-
suant to subpoena, following receipt of assurances from me
that such materials would be held as a sealed exhibit. I of-
fered such assurances in an attempt to enable Respondent to
comply with the subpoena without, by doing so, waiving its
position in this case that the materials sought are not produc-
ible.
Analysis and Conclusions
An employer’s duty to bargain in good faith with the col-
lective-bargaining representative of its employees includes
the obligation to provide information needed by a bargaining
representative for the proper performance of its duties. NLRB
v. Truitt Mfg. Co., 351 U.S. 149 (1956). Following an appro-
priate request, and limited only by considerations of rel-
evancy, the obligation arises from the operation of the Act
itself. Ellsworth Sheet Metal, Inc., 224 NLRB 1505 (1976).
The legal standard concerning just what information must
be produced is whether or not there is ‘‘a probability that
such data is relevant and will be of use to the union in ful-
filling its statutory duties and responsibilities as the employ-
ees’ exclusive bargaining representative.’’ Bohemia, Inc., 272
NLRB 1128 (1984). The Board uses a liberal, discovery-type
standard in determining whether information is relevant or
potentially relevant. NLRB v. Truitt, supra.
Information about employees actually represented by a
union is presumptively relevant and necessary and is required
to be produced. Ohio Power Co., 216 NLRB 987 (1975), ex-
cept in certain narrow instances where the information is
deemed confidential; in such circumstances, the information
need not be produced until safeguards are provided. Detroit
Edison Co. v. NLRB, 440 U.S. 301 (1979).
The Board, in determining that information is producible,
does not pass upon the merits of the grievance underlying a
request such as was made in this case; and the Union is not
required to demonstrate that the information sought is accu-
rate, nonhearsay, or even ultimately reliable. W. L. Molding
Co., 272 NLRB 1239 (1984).
I find that the Union’s request in this case meets the stand-
ard set out above. In light of Respondent’s response to the
Union’s first request for information regarding employee
Jackson, the Union’s second request seems quite reasonable,
and well designed to lead to further information about Jack-
son’s past history with Respondent. Such information has an
obvious possibility of affecting the Union’s decision about
such matters as whether, and how, to further proceed with
the grievance concerning Jackson’s discharge.
Nor is the Union foreclosed from securing the desired in-
formation by any claim of waiver, or untimeliness, which
may be put forward by Respondent.
First of all, the evidence is clear that no express waiver
of the right to look at supervisory notes has ever occurred.
Nor does the Union’s failure to pursue such notes in the past
amount to a ‘‘clear and unmistakable’’ waiver of statutory
rights, an effect not lightly inferred.
Secondly, any claim of untimeliness is defeated by the fact
that the Union has filed notice of its intent to pursue the
grievance at the next higher level. The fact that the grievance
has not yet been processed at that level is the product of Re-
spondent’s delay and refusal to supply the requested informa-
tion, not of any delay attributable to the Union.
Respondent’s attempt to equate the notes of its supervisors
with ‘‘witness statements’’ and to argue that the authorities
do not require the production of such materials is simply not
logical, and the authorities cited by Respondent are inap-
posite. The Board has never ordered a party to litigation to
turn over its ‘‘work product,’’ prepared in defense of litiga-
tion. But these ‘‘supervisory notes’’ were not prepared in
preparation for litigation. They were clearly the product of
the ‘‘encouragement’’ and ‘‘recommendation’’ of Respond-
ent’s officials to the supervisors. To me it seems clear that
those officials were conveying to the supervisors that, if they
didn’t want to run the risk of getting into trouble on account
of any lapse of memory which might cause Respondent any
difficulty, they’d best keep notes. Thus, it would seem that
only the most obtuse of supervisors would fail to keep notes
of any unusual incident at work, which might conceivably re-
quire recitation one day.
657T.U. ELECTRIC
6 All outstanding motions inconsistent with the results of this deci-
sion, if any, are hereby overruled.
7 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
8 If this Order is enforced by a judgment of a 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.’’
Under such circumstances, I am not impressed by Re-
spondent’s claim that the notes are not producible because
they are not its property, and are not in its custody or posses-
sion. Such claims seem altogether too convenient to Re-
spondent to be allowed much credence. That the supervisory
notes in question are subject to Respondent’s control is clear
from the fact that Respondent has only to direct its super-
visors to bring them to work, or to turn them over to higher
officials.
Finally, Respondent’s argument that the Union’s request is
not valid because it fails to account for the ‘‘alternative
methods’’ of talking to employees, supervisors, and/or man-
agers is not a defense to this complaint. The ‘‘alternatives’’
mentioned by Respondent have the infirmity of forcing the
Union to rely on the verbal recitations of persons whose
memories may have faded, or who may have a reason to dis-
semble or fabricate. The fact of fading memories is proven
by the very directions given by Respondent to its supervisors
as to the reason why they were being ‘‘encouraged’’ or ‘‘rec-
ommended’’ to keep notes.
Accordingly, I find and conclude that the complaint’s alle-
gations have been proven in every respect and that Respond-
ent’s defenses to these allegations are without merit.
I conclude therefrom that Respondent has violated Section
8(a)(5) and (1) of the Act and shall order an appropriate rem-
edy.
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. The bargaining unit described below is an appropriate
unit for collective bargaining within the meaning of Section
9(b) of the Act:
Included: All production and maintenance employees
regularly engaged in employment at (Respondent’s)
plants in Fairfield, Mt. Pleasant, Tatum and Franklin,
Texas, and job classifications and wage rates as out-
lined in Article XI of the collective bargaining agree-
ment between the (Respondent) and (the Union), and
any production or maintenance employees whose job
classification might be established during the tenure
of said agreement.
Excluded: Office clerical employees, guards and super-
visors within the meaning of the Act.
4. By failing and refusing to provide the Union with the
information requested in sections 2 and 3 of its letter of Au-
gust 8, 1989, including any and all pertinent supervisory
notes in its possession or or which are in the possession of
its supervisors but which are subject to its control, Respond-
ent has unlawfully refused, and is unlawfully refusing, to
bargain collectively in good faith with the Union, in violation
of Section 8(a)(5) and (1) of the Act.
5. The above unfair labor practices affect commerce within
the meaning of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I find it necessary to order it to cease and desist
and to take certain affirmative action designed to effectuate
the policies of the Act.
The Order will require Respondent to furnish the Union
with the information which it has unlawfully failed and re-
fused to furnish, and, if requested by the Union, to further
process the grievance of employee Calvin Jackson.
On these findings of fact and conclusions of law and on
the entire record,6 I issue the following recommended
ORDER7
The Respondent, T.U. Electric, Dallas, Texas, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively and in good faith with
International Brotherhood of Electrical Workers, Local 2337
by refusing to provide the Union with information requested
by the Union which is reasonably necessary or useful to the
Union in representing employees of Respondent, including
that requested by the Union in connection with the proc-
essing of the grievance of employee Calvin Jackson.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Furnish the above-named labor organization with the
information requested in its letter of August 15, 1989, and,
if the labor organization requests, further process the under-
lying grievance of employee Calvin Jackson.
(b) Post at its office in Dallas, Texas, and in its plant in
Tatum, Texas, copies of the attached notice marked ‘‘Appen-
dix.’’8 Copies of the notice, on forms provided by the Re-
gional Director for Region 16, after being signed by the Re-
spondent’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. Reason-
able steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
658 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT fail or refuse to bargain collectively in good
faith with International Brotherhood of Electrical Workers,
Local Union 2337 in the following unit which is appropriate
for the purposes of collective bargaining:
Included: All production and maintenance employees
regularly engaged in employment at T.U. Electric’s
plants in Fairfield, Mt. Pleasant, Tatum and Franklin,
Texas, and job classifications and wage rates as out-
lined in Article XI of the collective bargaining agree-
ment between the (Respondent) and (the Union), and
any production or maintenance employees whose job
classification might be established during the tenure
of said agreement.
Excluded: Office clerical employees, guards and super-
visors within the meaning of the Act.
WE WILL NOT fail or refuse to provide the above-named
labor organization with information requested by it which is
reasonably necessary or useful to it in representing employ-
ees in collective bargaining with us, and WE WILL, if re-
quested by the labor organization named above, further proc-
ess the grievance concerning the termination of employment
of employee Calvin Jackson.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
T.U. ELECTRIC