Hutchinson Fruit Co., Inc.

HUTCHINSON FRUIT CO. Hutchinson Fruit Company , Inc. and International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local 492. Case 28-CA-7571 15 November 1985 DECISION AND ORDER B CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On the basis of a charge filed by the Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local 492 (the Union) on 26 August 1983, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 28, issued a complaint against Hutchinson Fruit Company, Inc. (the Re- spondent) on 16 March 1984. The complaint alleges that since about 18 August 1983 the Respondent has violated Section 8(a)(5) and (1) and Section 8(d) of the Act by its insistence on tape-recording second-step grievance proceedings over the Union's objections, thereby unilaterally modifying the implied terms of the collective-bargaining agreement. The Respondent filed an answer to the complaint on 29 March 1984 in which it denied the commission of any unfair labor practices. On 10 May 1984 the parties entered into a stipu- lation to transfer this proceeding to the Board wherein they agreed that certain documents would constitute the entire record herein,' waived all in- termediate proceedings before an administrative law judge, and submitted the case directly to the Board for it to make findings of fact and conclu- sions of law and the issuance of a Decision and Order. On 17 September 1984 the Board approved the stipulation and set a date for the parties to file their briefs. Thereafter, briefs were filed by all the parties. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the record herein, as stipulated to by the parties, as well as their briefs, and makes the following findings of fact and con- clusions of law. 1. THE BUSINESS OF THE EMPLOYER The Respondent, Hutchinson Fruit Company, Inc., is now and has been at all times material herein a corporation organized under and existing by virtue of the laws of the State of New Mexico with an office and principal place of business locat- i The parties agreed that the charge, complaint, answer to the com- plaint, and the stipulation of facts, including exhibits attached, constitute the entire record in this case. 497 ed in Albuquerque, New Mexico, where it is en- gaged in the wholesale distribution of produce and related food products. During the past 12 months, the Respondent, in the course and conduct of its business operations, purchased and received at its Albuquerque, New Mexico location goods and ma-, terials valued in excess of $50,000 directly from points located outside the State of New Mexico. The parties stipulated, and we find, that the Re- spondent is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that the Re- spondent is, and at all material times has been,, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Facts , Hutchinson Fruit Company, Inc. is engaged in the wholesale distribution of produce and related food products in Albuquerque, New Mexico. The International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Local 492 has been the recognized bargaining agent of the Respondent's unit employees since 9 October 1975.2 The most recent collective-bargain- ing agreement between the Respondent and the Union is effective by its terms from 1 October 1983 to 30 September 1985. The agreement preceding it, which is the agreement that was effective at the time of the alleged unfair labor practice, had a term of 1 April 1982 through 30 September 1983. That agreement contained a four-step grievance and arbitration procedure which included final and binding arbitration of grievances arising over the discharge of employees not resolved by the Re- spondent and the Union during the first three steps. About 5 August 19833 employee Ernie Martinez was discharged by the Respondent. The Union was notified of the discharge by letter dated 8 August from the Respondent. Pursuant to the grievance procedure set forth in the collective-bargaining agreement, a step-one grievance meeting was held on 11 August, but the grievance was not resolved. 2 The parties stipulated, and we find, that the following-described em- ployees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec 9(b) of the Act- All warehousemen, dockmen, loaders, checkers, order pullers, in- cluding inside salesmen who pull orders, package processors, break- down men, and all truckdrivers employed by the Employer in Albu- querque, New Mexico, excluding all other employees, outside sales- men, guards, watchmen and supervisors as defined in the Act. 2 All dates hereafter refer to 1983 unless otherwise specified 277 NLRB No. 54 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter, a written grievance dated 12 August was submitted to the Respondent by the Union. On 18 August the parties met for the purpose of con- ducting step two .4 At the outset of the meeting, the Respondent's personnel director stated , "This is the hearing on Ernie Martinez . I understand that Ernie Martinez will not be available . This conver- sation will be recorded." In response, the Union's business agent stated, "Well, let's stop right now. You don't like recorders." Following this statement the parties left the meeting and no further discus- sion of the grievance of Ernie Martinez was con- ducted at that time. Following an exchange of correspondence, rep- resentatives of the Respondent and the Union again met on 25 August to discuss the grievance at step two. At the outset of the meeting the parties reiter- ated their positions regarding the tape recording of the proceeding. The Respondent insisted that the meeting be tape-recorded and the Union insisted that it not be. Because of the stated positions of the parties at the 25 August meeting, the grievance of Ernie Martinez was not resolved or discussed. The meeting ended at this juncture and the charges in this case were filed the following day. On 1 October the Respondent and the Union 'ex- ecuted a new collective-bargaining agreement. On 1 May 1984 the parties settled the grievance informally outside the grievance procedure set forth in the contract. B. Contentions of the Parties The complaint alleges in substance that the Re- spondent violated Section 8(a)(5) and (1) and Sec- tion 8(d) of the Act by its insistence, over the Union's objections, on tape-recording second-step grievance discussions between the parties. It is also alleged that, by such insistence, the Respondent has denied the Union access to the second step of the grievance procedure and has unilaterally modified the implied terms of the collective-bargaining agreement. The General Counsel and the Union contend that this case is controlled by Bartlett-Collins Co., 237 NLRB 770 (1978), enfd. 639 F.2d 652 (10th Cir. 1981), cert. denied 452 U.S. 961 (1981). The Respondent contends that the Board should reexamine the issue of tape-recording grievance proceedings and advance a clear rule of law for 4 The meeting was attended on behalf of the Respondent by Jun Hutchinson, the Respondent's president and owner, Linda Cronk, a man- agement employee, Ken Willey, the immediate supervisor of Ernie Marti- nez, and JoAnn Garcia, the Respondent's personnel director On behalf of the Union, the meeting was attended by Mike James, the Union's busi- ness agent, and Jesse Gomez, the Union's steward, future guidance.5 The Respondent asserts that there is a fundamental ,difference between griev- ance proceedings and collective-bargaining negotia- tions and that this difference should find expression in the law. It is the Respondent's position that any party to a grievance should be permitted to unilat- erally decide to tape-record the proceeding. C. Discussion and Conclusions The principal issue in this case is whether a party may insist to impasse upon the tape -recording of a grievance meeting. In Bartlett-Collins the Board held that the issue of the presence of a court reporter during negotia- tions or, in the alternative , the issue of the use of a device to record those negotiations does not fall within "wages, hours, and other terms and condi- tions of employment ." Rather, it was found that these subjects are not mandatory subjects of bar- gaining and either party's insistence to impasse on them is, accordingly, a violation of the Act without regard to whether such insistence was in good or bad faith. More recently, in Pennsylvania Telephone Guild (Bell Telephone), 277 NLRB 501 ( 1985), we exam- ined this issue in the context of grievance proceed- ings and concluded that the duty to bargain in good faith applies not only to negotiations, but also to any meeting where questions arising under the collective-bargaining agreement will be discussed. Contrary to the assertions of the Respondent herein, we found that grievance meetings are simi- lar to collective-bargaining negotiations in both character and methodology. As we observed in Pennsylvania Telephone, a grievance meeting is a mechanism used to address employee concerns where the ultimate goal is to reach an agreement or settlement. Disagreement' over the threshold issue of whether a recording device can be used, which is preliminary and subordinate to substantive matters, can stifle discussion from its inception. In our view, such a result would serve only to defeat our statutory obligation to encourage meaningful collective bargaining and the resolution of industri- al disputes. We therefore found that a party fails to The Respondent also contends that this issue is a matter of contract interpretation and should be deferred under United Technologies Corp, 268 NLRB 557 (1984) The Union has filed a motion to strike all refer- ences to deferral in the Respondent's brief on the ground that because the Respondent did not raise deferral before this proceeding was transferred to the Board, it waived deferral as a defense We find it unnecessary to pass on whether the Respondent's deferral argument was timely raised or waived, because the complaint alleges a rejection of the principles of col- lective bargaining by the Respondent in the framework of the very griev- ance procedure to which it would now have us defer We grant the Union's motion to strike two attachments to the Respondent's brief not previously included in the stipulation of facts and thereafter made a part of the record. HUTCHINSON FRUIT CO bargain in good ,faith by insisting to impasse on the use of a recording device during a grievance meet- ing. Applying the above-stated principles to the facts of this case, it is clear that, despite the Union's ob- jections to the use of a tape recorder, the Respond- ent's insistence on recording the grievance meet- ings remained unchanged. When the parties were unable to agree on this issue , the meetings ended without any discussion on the merits of the griev- ance. Accordingly, we conclude that the Respond- ents insistence to impasse on the nonmandatory subject of tape-recording the 18 and 25 August grievance meetings violated Section 8(a)(5) and (1) of the Act. IV. REMEDY Having found that the Respondent, Hutchinson Fruit Company, Inc., has engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act by insisting to impasse on the use of a re- cording device during grievance meetings, we shall order the Respondent to cease and desist from en- gaging in such conduct and from any like or relat- ed unfair labor practices, and to take certain affirm- ative action that we deem necessary to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. The Respondent, Hutchinson Fruit Company, Inc., Albuquerque, New Mexico, is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. The International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, Local 492 is a labor organization within the meaning of Section 2(5) of the Act. 3. Since 1975 and at all times material herein, the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Local 492 has been the exclusive representative of all the employees in the appropriate unit set forth below for purposes of collective bargaining with respect to wages, rates of pay, hours of employ- ment, and other terms and conditions of employ- ment within the meaning of Section 9(a) of the Act: All warehousemen, dockmen, loaders, check- ers, order pullers, including inside salesmen who pull orders, package processors, break- down men, and all truckdrivers employed by the Employer in Albuquerque, New Mexico; excluding all other employees, outside sales- men, guards, watchmen and supervisors as de- fined in the Act. 499 4. Since about 18 and 25 August 1983, and con- tinuing to date, the Respondent, by insisting to im- passe on the use of a recording device during grievance meetings , has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(5) and (1) and Section 8(d) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. ORDER The National Labor Relations Board orders that the Respondent, Hutchinson Fruit Company, Inc., Albuquerque, New Mexico, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain in good faith with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Local 492, 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 employers 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 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 492, as the exclusive representative of the employees in the appropriate unit set forth below, bargain in good faith over grievances filed pursuant to the collective-bargain- ing agreement. The appropriate unit is: All warehousemen, dockmen, loaders, check- ers, order pullers, including inside salesmen who pull orders, package processors, break- down men, and all truckdrivers employed by the Employer in Albuquerque, New Mexico; excluding all other employees, outside sales- men, guards, watchmen and supervisors as de- fined in the Act. (b) Post at its place of business in Albuquerque, New Mexico, copies of the attached notice marked "Appendix."6 Copies of the notice, on forms pro- vided by the Regional Director for Region 28, after being signed by the Respondent's representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places 6 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." 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 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 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, Local 492, 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, rstrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. WE WILL, on request, meet, process, and discuss with the Union, as the exclusive representative of the employees in the appropriate unit described below, grievances filed pursuant to the terms of the collective-bargaining agreement in effect between ourselves and the Union . The appropriate unit is: All warehousemen, dockmen, loaders, check- ers, order pullers, including inside salesmen who pull orders, package processors, break- down men, and all truckdrivers employed by the Employer in Albuquerque, New Mexico; excluding all other employees, outside sales- men, guards, watchmen and supervisors as de- fined in the Act. HUTCHINSON FRUIT COMPANY, INC.