Illinois-American Water Co.

National Labor Relations Board - Board Decisions

Jan 18, 1991

301 N.L.R.B. 218 (N.L.R.B. 1991)

218
301 NLRB No. 23
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In adopting the judge’s dismissal of the allegation that the Respondent vio-
lated Sec. 8(a)(5) and (1) by refusing to bargain concerning the employees at
its Belleville computer center, we find it unnecessary to decide whether, under
the circumstances of this case, the Respondent was obligated to bargain with
regard to those employees while its exceptions to the finding in Case 14–CA–
18981, et al., that the computer center employees were properly included in
the unit were pending before the Board. Instead, we find that the record does
not support a finding that the Respondent actually refused to bargain over
these employees. In this regard, the General Counsel has contended that the
Union had raised bargaining over these employees several times during the
course of the parties’ negotiations and that, in light of Union Representative
Bingaman’s comments that the Respondent’s proposals were designed to
strengthen its position in the collateral litigation and to ‘‘gut the unit,’’ the
Respondent’s failure to make proposals concerning the computer center em-
ployees indicated a refusal to bargain over their conditions of employment. We
disagree; we do not view Bingaman’s comments as putting the Respondent on
notice that the Union was seeking to bargain over these employees. A mere
protest of an employer’s actions or positions is not tantamount to a demand
for bargaining. Cf. American Bus Lines, 164 NLRB 1055, 1056 (1967), citing
NLRB v. Columbia Enameling & Stamping Co., 306 U.S. 292, 297 (1937). In-
stead, we find that the Union’s first and only demand that the Respondent bar-
gain over the computer center employees occurred during negotiations on
March 29, 1989. When Respondent Representative Jackson responded that he
wished to confer with counsel before answering Bingaman’s query whether he
was refusing to bargain, Bingaman ended the meeting and the negotiations.
Under these circumstances, we do not regard Jackson’s statement of intent to
confer with counsel as a refusal to bargain, and we adopt the judge’s dismissal
of these allegations. Nothing in this decision, however, shall be construed as
relieving the Respondent of its obligation to bargain, on demand, over terms
and conditions of employment of the employees in the appropriate unit.
The General Counsel has excepted to the judge’s failure to make findings
as to an appropriate unit. We find merit in this exception and we find that
the appropriate unit, as alleged by the General Counsel in the complaint, is
that found by the Board in Illinois-American Water Co., 296 NLRB 715
(1989):
All office employees employed by the Respondent at its Belleville Com-
puter Center, and Granite City and East St. Louis district offices, EX-
CLUDING office employees performing group insurance and/or pension du-
ties, other confidential employees, guards, and supervisors as defined by
the Act.
The General Counsel has excepted to the admission of testimony by Re-
spondent witnesses Jackson and Conner regarding statements purportedly made
to them by unit employees that they wished to be free of the Union. It does
not appear that the judge relied on this testimony; in any case, we do not rely
on it. 1 The following includes a composite of the testimony which is credited.
Illinois-American Water Company, Southern Divi-
sion and Office and Professional Employees
International Union, Local 13, AFL–CIO. Case
14–CA–20010
January 18, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On May 10, 1990, Administrative Law Judge Law-
rence W. Cullen issued the attached decision. The
General1 Counsel filed exceptions and a supporting
brief and the Respondent filed a brief in reply.
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 recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Michael T. Jamison, Esq., for the General Counsel.
R. Michael Lowenbaum, Esq. and Robert L. Broderick, Esq.
(Thompson & Mitchell), of St. Louis, Missouri, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
case was heard before me on July 18 and 19, 1989, in St.
Louis, Missouri, pursuant to a complaint filed by the Re-
gional Director of Region 14 of the National Labor Relations
Board (the Board) on May 18, 1989. The complaint alleges
violations of Section 8(a)(1) and (5) of the National Rela-
tions Act (the Act) were committed by Illinois-American
Water Company, Southern Division (the Respondent) and is
based on a charge filed by Office and Professional Employ-
ees International Union, Local 13, AFL–CIO (the Union) on
March 29, 1989. The complaint is joined by Respondent’s
answer filed on June 2, 1989, which denies the commission
of any violations of the Act by Respondent and asserts sev-
eral specific defenses thereto.
On the entire record in this proceeding, including my ob-
servation of the demeanor of the witnesses who testified and
after due consideration of the motions and responses thereto
and positions asserted at the hearing and the briefs filed by
the General Counsel and counsel for the Respondent, I make
the following
FINDINGS OF FACT AND ANALYSIS1
I. THE BUSINESS AND STATUS OF RESPONDENT
The complaint alleges, the Respondent admits, and I find
that Respondent is and has been at all times material an Illi-
nois corporation with offices and places of business in Belle-
ville, Granite City, and East St. Louis, Illinois (Southern Di-
vision facilities), and has been engaged as a public utility in
the distribution and sale of water to the general public, that
during the 12-month period ending April 30, 1989, Respond-
ent, in the course of its business operations described above,
derived gross revenues in excess of $250,000 and purchased
219ILLINOIS-AMERICAN WATER CO.
and received at its Southern Division facilities products,
goods, and materials valued in excess of $50,000 directly
from points outside the State of Illinois, and that Respondent
is now, and has been at all times material, an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find that
the Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
This case essentially involves two issues. They are wheth-
er the Respondent violated Section 8(a)(5) and (1) of the Act
by refusing to recognize and bargain with the Union on be-
half of its computer service center employees and whether
the Respondent engaged in an overall course of unlawful sur-
face bargaining during the February to March 1989 negotia-
tions to replace the 1986–March 1989 labor agreement. As
of the date of the hearing there had been issued a decision
by National Labor Relations Board Administrative Law
Judge Donald R. Holley on September 22, 1988, which was
then pending before the National Labor Relations Board. In
that decision Judge Holley had found that ‘‘the Union in-
volved herein has represented employees employed in two
separate bargaining units within the Southern Division for a
number of years. One unit is composed of ‘clerical employ-
ees excluding management staff and supervisors. . . .’ em-
ployed in the Alton District Office.’’ He further found, ‘‘The
second unit is composed of ‘all office employees . . . exclu-
sive of supervisory employees and confidential employees,
including those employees performing group insurance
and/or pension duties . . .’ employed in the Belleville, East
St. Louis (Illinois), and Granite City (Illinois) district offices.
The Union has represented the employees in the described
unit (herein frequently referred to as the East St. Louis unit)
since 1948. He further found that an organizational change
took place in 1987 wherein Respondent closed its Belleville
district office in early April 1987, transferred its unit em-
ployees in the Belleville office to East St. Louis, remodeled
its district office to accommodate a computer center which
opened on September 28, 1987, and staffed it with 11 cler-
ical employees previously employed in the East St. Louis of-
fice and thereafter treated these employees as nonunion em-
ployees. With respect to these actions Judge Holley found
that Respondent had engaged in an unlawful refusal to bar-
gain by refusing to recognize the Union as the exclusive bar-
gaining agent of clerical employees employed at its Belle-
ville computer center by refusing to apply the terms of the
East St. Louis bargaining agreement to such employees, as
the Belleville computer employees were an accretion to the
unit. He then found the following to be the appropriate unit
within the meaning of Section 9(b) of the Act:
All office employees employed by the Respondent at its
Belleville computer center, and Granite City and East
St. Louis district offices, EXCLUDING office employees
performing group insurance and/or pension duties, other
confidential employees, guards, and supervisors as de-
fined in the Act.
Judge Holley issued his recommended Order to cease and de-
sist from the refusal to recognize the Union as the exclusive
bargaining representative of the employees in the appropriate
unit, including those employed at the Belleville, Illinois com-
puter center and refusing to apply the terms and conditions
of the collective-bargaining agreement with the Union to its
computer center employees and to take affirmative actions to
remedy these violations by honoring the collective-bargaining
agreement, and any extensions applying the terms to com-
puter center employees who are within the appropriate bar-
gaining unit and to make them whole for any losses sus-
tained by Respondent’s failure to apply the collective-bar-
gaining agreement and make all fringe benefit payments and
contributions required by the agreement or any extensions.
Judge Holley’s Decision and Order was adopted by the
Board in its decision issued September 22, 1989, with a
minor modification of the Order, not here relevant.
The Union and Respondent are parties to a collective-bar-
gaining agreement dated March 1, 1986, to February 28,
1989, covering employees at Respondent’s Belleville, East
St. Louis, and Granite City, Illinois offices. Respondent’s
manager of its southern division, Robert Jackson, with re-
sponsibility for negotiating labor agreements in that division
which includes the Belleville, East St. Louis, and Granite
City offices received a letter on December 12, 1988, from
Union Business Representative James Bingaman giving no-
tice of the Union’s intent to negotiate a new labor agreement
including improvements and a request for information. The
Union’s letter made no mention of the computer center em-
ployees. Jackson met with his supervisors and reviewed the
existing contract and developed a list of contractual proposed
amendments to be presented to the Union on behalf of Re-
spondent. These proposals were reviewed by Jackson with
Respondent’s vice president, Thomas M. Conner, who ap-
proved them. On January 9, 1989, Jackson responded to the
information request by letter and enclosed the requested in-
formation on all employees in the East St. Louis district of-
fice and four unit employees in the corporate office in Belle-
ville, but did not enclose any information with respect to the
disputed employees in the Belleville computer center, Binga-
man never contested the lack of information concerning the
computer center employees and there is no allegation of a re-
fusal to furnish information with respect to these employees.
Conner testified he had not directed Jackson to negotiate on
behalf of the employees and he did not believe the Union
was seeking to negotiate on behalf of the computer center
employees in these negotiations.
Pursuant to mutual agreement the parties initially met on
February 1, 1989, and exchanged their proposals for a new
labor agreement. The parties then recessed and then returned
and Jackson explained Respondent’s proposals to the Union
representatives. Jackson explained the Respondent’s pro-
posals to delete references in the preamble of the existing
agreement to certain district offices to reflect that they no
longer existed. Bingaman said he would have this language
reviewed by his attorney and commented that the Respondent
was trying to improve its National Labor Relations Board
case referring to the case in which Administrative Law Judge
Holley had entered his recommended decision then pending
before the Board on exceptions by Respondent. Jackson who
had been newly appointed to his position and had not been
220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
involved in the National Labor Relations Board case testified
he did not know to what Bingaman was referring.
Jackson also explained Respondent’s proposal to change
the union recognition clause in the labor agreement to delete
references to district offices as the Belleville and Granite
City offices had been closed. Bingaman commented with re-
gard to this proposal that he thought the Respondent was at-
tempting to strengthen its position, which Jackson denied.
Bingaman also stated he wanted this proposal reviewed by
his attorney. Respondent also proposed the deletion of the
first paragraph of the union-shop clause and its replacement
with the management-rights clause which was then currently
in the latter part of the agreement. Jackson told the union
representatives that Respondent wanted the employees to
have a choice as to whether they belonged to the Union, but
that the Respondent would continue to recognize the Union
as the exclusive bargaining representative. Jackson testified
at the hearing that he had been approached on some occa-
sions by employees who voiced their desire to get out of the
Union. Similarly Vice President Conner testified to having
received a similar request by a bargaining unit employee.
With respect to the grievance procedure Respondent pro-
posed a name change of the term ‘‘Office Chairman’’ to
‘‘Customer Service Superintendent’’ as the person to whom
employees should bring their grievances to reflect the actual
title of the individual designated to receive grievances. Re-
spondent also proposed that time spent in arbitration hearings
by employees should not be considered as time worked.
Jackson told Bingaman that the proposed language was in
other of its contracts and specifically was in the Alton con-
tract with the OPEIU. Bingaman, a newly appointed business
manager, was unaware the language was in the Alton con-
tract. Jackson said Respondent did not want to give employ-
ees an incentive to arbitrate. Bingaman commented that this
was another attempt to gut the contract. With respect to se-
niority, the Respondent proposed to reduce recall rights for
employees laid off to 1 year or less instead of the 2 years
provided in the contract. This proposal also included the
elimination of certain bidding rights in conjunction with an-
other proposal reducing the number of classifications to one,
and assigning only two wage rates, thus eliminating bidding
requirements. Bingaman said this was another attempt to gut
the contract.
Respondent also proposed changing from ‘‘refuses’’ to
‘‘fails’’ for purpose of clarity concerning the loss of seniority
rights by an employee who does not report for work for
seven consecutive days. Respondent also proposed a new
clause providing that vacation would not occur for periods
when employees were not working as a result of a labor dis-
pute. Jackson told Bingaman that this clause was in other of
its contracts including the Alton agreement. Respondent also
proposed the return of supervisors to their former bargaining
unit positions in the event the supervisory position were
eliminated or the employee was unsatisfactory in the super-
visory position. Respondent also proposed the elimination of
a reference to a hire date of August 21, 1987, in the existing
labor agreement as no one was aware of the significance of
this date. The Union agreed to this proposal.
With respect to sick leave the Respondent proposed lim-
iting the number of doctor visits to two a year. Jackson told
the union representatives that they believed the current un-
limited number of doctor visits was being abused. Respond-
ent also proposed that employees be required to notify their
supervisor by 8 a.m. if they would be absent because of ill-
ness rather than the existing provision which permitted them
to notify their supervisor within 2 hours after the start of the
shift. Jackson told the union representatives that the purpose
of this was to enable Respondent to adequately plan the work
and that it was in other contracts including the Alton con-
tract.
With respect to death in immediate family, the existing
clause provided for employees to be granted up to 4 days off
which would include Saturdays and Sundays. Respondent did
not want to pay employees for Saturdays and Sundays when
they would not lose any pay. The Respondent’s proposal pro-
vided that holidays would be treated as included days also.
Respondent also proposed adding foster children as members
of the immediate family.
With respect to maternity leave Respondent proposed de-
leting the existing maternity leave clause which permitted a
full year of leave and replacing it with a clause stating that
maternity leave would conform to state and Federal law.
Jackson told the union representatives that the Respondent
was experiencing problems because of the length of the leave
which was disrupting operations.
With respect to jury duty Respondent proposed limiting
compensation for jury duty to 2 weeks. Jackson cited the Re-
spondent’s concern that an unlimited period of compensation
could be too expensive as the result of possibility of lengthy
trials, some lasting as long as several years. Bingaman com-
mented he was aware of the problem. Respondent also pro-
posed the deletion of the clause entitled ‘‘District Rules and
Regulations’’ in conjunction with its proposal to move the
management-rights clause to the front of the agreement.
With respect to paid holidays Respondent proposed elimi-
nating two personal day holidays and replacing them with
the employees birthday and Martin Luther King’s birthday.
Jackson told the union representatives Respondent wanted to
be able to anticipate the days employees would be off and
wanted to achieve consistency with other contracts particu-
larly with its outside employees represented by Local 100
who are off on Martin Luther King’s birthday. He also said
that Respondent would consider granting off all of Christmas
Eve instead of the current half day and eliminating the cur-
rent half day allowed on New Year’s Eve.
Respondent also proposed reducing the number of job
classifications and simplifying the language concerning the
starting rate and deleting a clause which provided the Com-
pany and Union would meet to discuss additional classifica-
tions as Respondent considered the control of the number of
classifications a management right. The Respondent also pro-
posed a new article specifying subrogation rights for Re-
spondent when employees who had been compensated by
Respondent for injuries also received compensation from
third parties. Respondent also proposed revisions in the ter-
mination clause to conform with termination language in
other of its agreements.
The parties next met on February 8, 1989, and Jackson re-
sponded to the Union’s proposals. He rejected the Union’s
request for additional vacation time. He rejected the Union’s
request for pay for funeral leave on Saturdays and Sundays
as the employees did not work on these days and incurred
no loss of pay. He also told the Union he would make a
wage offer at the next meeting. He discussed the Union’s
221ILLINOIS-AMERICAN WATER CO.
holiday proposal and offered a full day of Christmas in place
of the existing half days on Christmas Eve and New Year’s
Eve. The parties then discussed the Respondent’s proposals
and the Union offered to agree to certain of them (i.e., to re-
duce the number of job classifications into two wage rates
if the Respondent agreed to permit bidding in the East St.
Louis office). The parties agreed that vacation benefits would
not be paid during a strike. They also agreed to remove the
reference to the August 21, 1957 date in the contract. The
parties discussed sick leave abuse and at the Union’s request,
the Respondent agreed to supply the records at the next
meeting and did so.
The parties next met on February 14 and Bingaman and
Jackson met privately on several occasions in an attempt to
resolve issues. At this meeting Respondent also gave the
Union its wage proposal. At the end of the meeting, Binga-
man suggested that a Federal mediator be brought in and
Jackson agreed.
On February 24 the parties met with the Federal mediator
who reviewed the parties positions and met privately with
both sides. The mediator suggested a ‘‘fair share’’ clause to
resolve the issue of union security by allowing employees to
pay a maintenance fee to the Union in lieu of a requirement
of membership dues. Jackson agreed to review the mediator’s
suggestions. The parties also agreed to several items and
dropped some proposals.
On February 27 the parties met again with the mediator
present and Respondent proposed to modify its original
union-security proposal in accordance with the mediator’s
suggestions but this proposal was rejected by the Union. At
the end of the meeting Jackson read a written summary of
the progress of the negotiations and the parties agreed to a
30-day extension of the contract.
The parties next met on March 7 and discussed unresolved
issues. At this meeting Respondent gave the Union its final
wage offer. The mediator also met with the parties in several
private caucuses.
The parties last meeting was held on March 29. At this
meeting Bingaman stated that he desired to negotiate on be-
half of the computer center employees. When Jackson asked
why this matter was brought up at this time with only 3 days
remaining in the contract, Bingaman asked Jackson whether
he was refusing to negotiate on behalf of the computer center
employees and Jackson replied he would need to talk to legal
counsel before responding to this. Bingaman then declared
that the meeting was over. Following the caucus the Re-
spondent gave the Union its final offer. The parties have not
met since and the Respondent did not implement the final
offer.
Analysis
A. Respondent did not Violate the Act by Refusing to
Bargain Concerning the Computer Service Center
A decision was issued by Administrative Law Judge
Holley in September 1988 finding that the computer service
employees were an accretion to the bargaining unit rep-
resented by the Union and directing Respondent to fulfill its
bargaining obligations with respect to these employees. How-
ever, as the Respondent contends in its brief, Judge Holley’s
decision is a recommendation to the Board and does not be-
come final in a case such as the instant one in which excep-
tions have been filed, until such time as it has been adopted
by the Board. At the time of the events in early 1989 giving
rise to the instant case, the Board had not yet resolved the
appeal and consequently the recommended decision entered
by Judge Holley was not a final decision. Accordingly in the
absence of a final decision Respondent had no obligation to
bargain with respect to the computer service center. In this
regard as the Respondent points out in its brief, Section 9(b)
of the Act provides that, ‘‘the Board shall decide in each
case whether, in order to assure employees the fullest free-
dom in exercising the rights guaranteed by this subchapter,
the unit appropriate for the purposes of bargaining shall be
the employer unit, craft unit, plant unit, or subdivision there-
of’’ Further as noted in Respondent’s brief Section 102.48 of
the Board’s Rules and Regulations provides, ‘‘In the event
no timely or proper exceptions are filed as herein provided,
the findings, conclusions, and recommendations contained in
the administrative law judge’s decision shall . . . automati-
cally become the decision and order of the Board.’’ I further
find that the case of Milwaukee Electric Tool Corp., 112
NLRB 1135 (1955), cited by Respondent is applicable to this
case. While the Milwaukee Electric Tool case is not of recent
vintage, the General Counsel did not cite any cases to the
contrary and I find it supports Respondent’s position. In Mil-
waukee Electric Tool the Board held that the Employer had
not violated Section 8(a)(5) of the Act by refusing to bargain
after exceptions were filed and held that ‘‘until the Board re-
solved the issue raised by the exceptions . . . the nature of
Respondent’s obligations under Section 8(a)(5) was in
doubt.’’ The Board reasoned:
Had the Board concluded that a contract had in fact
been negotiated and should be signed by the Respond-
ent, any negotiations for another contract which the Re-
spondent and the Union might have conducted while
the issue was awaiting Board determination, would
have been futile.
Clearly in the instant case it would have been futile for the
Respondent and the Union to have bargained over the terms
and conditions of employment of the computer center em-
ployees in early 1989 if the Board had subsequently deter-
mined that these employees were not properly included in
the bargaining unit.
I further find that the Board’s decision in Howard Plating
Industries, 230 NLRB 178 (1977), is applicable to the instant
case. In that case the Regional Director had issued his report
and recommendation and objections by the Employer to an
election ‘‘in which he recommended overruling Respondent’s
objections in their entirety and certifying the Union as the
exclusive collective-bargaining representative for the appro-
priate unit.’’ Shortly thereafter and prior to the final deter-
mination by the Board of timely filed exceptions to the deci-
sion of the Regional Director, the Union requested bar-
gaining and the Employer refused to bargain. In finding that
the Respondent had not violated the Act, the Board stated (at
179):
Although an employer’s obligation to bargain is es-
tablished as of the date of an election in which a major-
ity of unit employees vote for union representation, the
Board has never held that a simple refusal to initiate
collective-bargaining negotiations pending final Board
222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 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 Section 102.48 of the Rules, be adopted by the Board and all ob-
jections to them shall be deemed waived for all purposes.
resolution of timely filed objections to the election is a
per se violation of Section 8(a)(5) and (1) . . . ., and
While awaiting issuance of a Board decision which
might have relieved it of any bargaining obligation. Re-
spondent did not violate the Act, absent additional con-
duct reflective of bad-faith intentions, by refraining
from the negotiation of a potentially moot collective
bargaining agreement.
I thus conclude the Respondent did not violate section
8(a)(5) of the Act by its alleged refusal to bargain concerning
the computer center employees.
B. Respondent did not Engage in Surface Bargaining in
Violation of the Act
I do not find any evidence in this case that would support
a charge of surface bargaining. By all accounts of the events
leading up to bargaining and including the bargaining proc-
ess the bargaining was conducted in a fair and reasonable
manner by the Respondent. On December 12, 1988, the
Union sent the Respondent its 60-day notice letter and asked
for information concerning the employees in the bargaining
unit. The Respondent promptly replied to the letter and
agreed to meet by its letter of January 9, 1989, wherein it
advised it would be seeking some contractual changes. It also
promptly forwarded the Union the requested information.
The parties by mutual agreement met on February 1, 1989,
and exchanged bargaining proposals and met a total of seven
times until March 29, 1989, when Union Representative
James Bingaman, apparently upset over his perception that
the Respondent had refused to bargain concerning the com-
puter center employees, called a halt to the bargaining. Dur-
ing this time the parties reached agreement on some pro-
posals and made modifications on others. At the suggestion
of Bingaman the Respondent agreed to the use of a Federal
mediator and the parties availed themselves of his services
up to and including the last meeting which was called by the
mediator.
The principal bases on which I can perceive the General
Counsel relies in this case with respect to the allegation of
bad-faith surface bargaining is the Respondent’s proposal of
the elimination of the union-security clause in the then-exist-
ing contract as well as Respondent’s alleged refusal to bar-
gain over the computer center employees discussed supra.
However, the Board has held that the making of a bargaining
demand that a union-security clause be eliminated is not a
violation of the Act. Atlas Metal Parts Co., 660 F.2d 304,
308 (7th Cir. 1981); Cook Bros. Enterprises, 288 NLRB 387
(1988).
In this case there was a history of a successful bargaining
relationship between the parties, Chervon Chemical Co., 261
NLRB 44 (1982). The evidence showed that Respondent met
with the Union at reasonable times and places and engaged
in sincere efforts to obtain an agreement Reichhold Chemi-
cals, 277 NLRB 639 (1985); Atlanta Hilton & Tower, 271
NLRB 1600 (1984). Respondent did not unilaterally imple-
ment any changes and did not bypass the Union. See Trinity
Valley Iron & Steel, 127 NLRB 417 (1960), enfd. 290 F.2d
47 (5th Cir. 1961), and Dinion Coil Co., 110 NLRB 196
(1954), wherein the Board found the imposition of unilateral
changes in wages to be indicia of bad-faith bargaining. See
Moisi & Son Trucking, 197 NLRB 198 (1972), re: Direct
dealing with represented employees.
Finally the Board’s rulings in Rescar, Inc., 274 NLRB 1
(1985), and in Reichhold Chemicals, supra, and its Supple-
mental Decision in Reichhold Chemicals, 288 NLRB 69
(1988), are instructive. In Rescar the Board in reliance on
NLRB v. American National Insurance Co., 343 U.S. 395,
407–408 (1952), stated:
Moreover, it is not the Board’s role to sit in judgment
of the substantive terms of bargaining but rather to
oversee the process to ascertain that the parties are
making a sincere effort to reach agreement.
In Reichhold the Board stated,
The Board will not attempt to evaluate the reasonable-
ness of a party’s bargaining proposals as distinguished
from bargaining tactics, in determining whether the
party has bargained in good faith.
In Reichhold, supplemental the Board stated,
we wish to emphasize that in some cases specific
proposals might become relevant in determining wheth-
er a party has bargained in bad faith, and,
That we will read proposals does not mean, however,
that we will decide that particular proposals are either
‘‘acceptable’’ or ‘‘unacceptable’’ to a party.
Under the circumstances of this case and mindful of the
above rulings indicating the Board’s reluctance to find bad-
faith bargaining solely on the content of the proposals, I find
that the proposals made by Respondent in the instant case
were not evidence of bad-faith bargaining on the part of Re-
spondent.
CONCLUSIONS OF LAW
1. Illinois-American Water Company, Southern Division is
an employer within the meaning of Section 2(6) and (7) of
the Act.
2. Office and Professional Employees International Union,
Local 13, AFL–CIO is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent did not violate Section 8(a)(5) and (1) of
the Act by refusing to bargain concerning the terms and con-
ditions of employment of the computer center employees.
4. Respondent did not engage in surface bargaining or oth-
erwise bargain in bad faith in its negotiations with the Union
in February and March 1989, and accordingly did not violate
Section 8(a)(5) and (1) during the course of these negotia-
tions.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The complaint is dismissed in its entirety.