Hutchinson Fruit Co., Inc.

National Labor Relations Board - Board Decisions

Nov 15, 1985

277 N.L.R.B. 497 (N.L.R.B. 1985)

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.