Water Association

National Labor Relations Board - Board Decisions

Aug 15, 1988

290 N.L.R.B. 838 (N.L.R.B. 1988)

838 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Water Association and United Paperworkers
International Union, Local 1967, AFL-CIO.
Case 9-CA-25231
August 15, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
Upon a charge filed by the Union, the General
Counsel of the National Labor Relations Board
issued a complaint May 2, 1988, against the Re-
spondent alleging that it has violated Section
8(a)(5) and (1) of the National Labor Relations
Act.
The complaint alleges that since March 18, 1988,
the Respondent has demanded, as a condition of
conducting second-step grievance meetings, that
the Union agree to audiotape recording of the
meetings. On May 17, 1988, the Respondent filed
its answer admitting in part and denying in part the
allegations in the complaint.
On June 6, 1988, the General Counsel filed with
the Board a Motion for Summary Judgment assert-
ing that the Respondent's answer does not place in
issue any factual allegations and raises only a ques-
tion of law.
On June 9, 1988, the Board issued an order trans-
ferring the proceeding to the Board and a Notice
to Show Cause why the mt:ioii should not be
granted. The Company filed a response, and the
Union filed a brief supporting the General Coun-
sel's motion.
Ruling on Motion for Summary Judgment
The complaint alleges that the Union is the rec-
ognized exclusive collective-bargaining representa-
tive of an appropriate unit;' that the Respondent
and the Union are parties to a collective-bargaining
agreement that expires November 30, 1989; that
since March 18, 1988, the Respondent has demand-
ed, as a condition of conducting second-step griev-
ance meetings, that the Union permit audiotape re-
cording of the meetings; that this condition is a
nonmandatory subject of bargaining; and that since
March 18, 1988, the Respondent has insisted to im-
passe on this demand. The Respondent's answer to
the complaint states that "the allegations as con-
' The appropriate unit is:
All full-time and part-time employees including, but not limited to,
equipment operators , maintenance employees , water treatment plant
employees , meter readers , janitorial employees, warehousemen, and
all other production and maintenance employees . Excluded from the
bargaining unit are all office clerical employees , purchasing agents,
staking engineers , managerial employees , professional employees,
guards and supervisors as defined in the National Labor Relations
Act, as amended.
tained in the Complaint are substantially true
except that [the Respondent] denies that the activi-
ties as described therein is an unfair labor prac-
tice." Thus, the Respondent's answer admits the
factual allegations in the complaint.
We have found that insisting to impasse on the
use of a recording device during a grievance meet-
ing constitutes an unlawful insistence on a nonman-
datory subject of bargaining in violation of the
duty to bargain in good faith.2 Accordingly, the
Respondent has admitted all the facts material to a
resolution of the unfair labor practice issues raised
by the complaint. There being no material facts in
dispute, and in the absence of any cause to the con-
trary having been shown by the Respondent, we
grant the General Counsel's Motion for Summary
Judgment.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
The Respondent, a corporation, is engaged in the
production and distribution of potable water at a
facility in Butler County, Ohio, where it annually
derives gross revenues in excess of $250,000, and
purchases and receives at its facility products,
goods, and materials valued in excess of $50,000 di-
rectly from points outside the State of Ohio. We
find that the Company 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 or-
ganization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Since March 18 , 1988, the Respondent has de-
manded , as a condition of conducting second-step
grievance meetings , that the Union permit audio-
tape recording of the meetings , and since March
18, 1988 , the Respondent has insisted to impasse on
that demand . By their conduct, we find that the
Respondent has violated Section 8 (a)(5) and (1) of
the Act. Pennsylvania Telephone Guild, supra;
Hutchinson Fruit, supra.
2 See Pennsylvania Telephone Guild, 277 NLRB 501 (1985), enfd. 799
F.2d 84 (3d Cir. 1986), and Hutchinson Fruit Co., 277 NLRB 497 (1985).
We decline to follow the Respondent 's suggestion that we overrule these
cases.
The Eighth Circuit' s decision in NLRB v. Southern Transport, 355 F.2d
978 (8th Cir. 1966), relied on by the Respondent , is not controlling. As
the Tenth Circuit stated in NLRB v. Bartlett-Collins Co., 639 F.2d 652,
658 (10th Cir. 1981), cert. denied 454 U.S. 961 (1981), Southern Transport
did speak favorably of stenographic recording of bargaining sessions, but
this was in relation to the court's decision that the insisting party's
demand had been made in good faith . The Eighth Circuit did not consid-
er whether the matter constituted a mandatory subject of bargaining.
290 NLRB No. 95
WATER ASSN. 839
CONCLUSIONS OF LAW
By insisting to impasse on and after March 18,
1988 , on the use of a recording device during
grievance meetings , the Company has engaged in
unfair labor practices affecting commerce within
the meaning of Section 8(a)(5) and (1) and Section
2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated
Section 8(a)(5) and (1) of the Act by insisting to
impasse on the use of a recording device during
grievance meetings , we shall order the Respondent
to cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act.
ORDER
The National Labor Relations Board orders that
the Respondent , The Water Association , Butler
County, Ohio, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with the
United Paperworkers International Union, Local
1967, AFL-CIO by insisting to impasse on the use
of a recording device during grievance meetings.
(b) In any like or related manner interfering
with, restraining , or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request by the United Paperworkers
International Union , Local 1967, AFL-CIO, as the
exclusive representative of the employees in the ap-
propriate unit set forth below , bargain in good faith
by meeting , processing, and discussing with the
Union grievances filed pursuant to the collective-
bargaining agreement . The appropriate unit is:
All full-time and part-time employees includ-
ing, but not limited to, equipment operators,
maintenance employees , water treatment plant
employees, meter readers, janitorial employees,
warehousemen, and all other production and
maintenance employees . Excluded from the
bargaining unit are all office clerical employ-
ees, purchasing agents , staking engineers, man-
agerial employees, professional employees,
guards and supervisors as defined in the Na-
tional Labor Relations Act, as amended.
(b) Post at its place of business in Butler County,
Ohio, copies of the attached notice marked "Ap-
pendix."s Copies of the notice, on forms provided
by the Regional Director for Region 9, after being
signed by the Respondent 's representative , shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices 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.
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 Nation-
al 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."
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 the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain in good faith
with the United Paperworkers International Union,
Local 1967, AFL-CIO by insisting to impasse on
the use of a recording device during grievance
meetings.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them in Section 7
of the Act.
WE WILL, on request by the Union, as the exclu-
sive representative of the employees in the appro-
priate unit set forth below, bargain in good faith by
meeting, processing, and discussing with the Union
grievances filed pursuant to the terms of the collec-
tive-bargaining agreement in effect between our-
selves and the Union. The appropriate unit is:
All full-time and part-time employees includ-
ing, but not limited to, equipment operators,
maintenance employees , water treatment plant
employees, meter readers, janitorial employees,
warehousemen , and all cther production and
maintenance employees . Excluded from the
bargaining unit are all office clerical employ-
ees, purchasing agents , staking engineers, man-
agerial employees , professional employees,
840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
guards and supervisors as defined in the Na-
tional Labor Relations Act, as amended.
THE WATER ASSOCIATION