On Application of Petitioner for Enforcement of its Order, Board Docket No. 4-CB-4821
Before: SEITZ, ADAMS, and STAPLETON, Circuit Judges.
This appeal requires us to address the question whether a union violated the National Labor Relations Act (NLRA) by insisting that a grievance meeting be tape-recorded even after management refused to take part in a tape-recorded meeting. The National Labor Relations Board (Board) found the union failed to bargain in good faith as required by the Act, and ordered it to cease and desist. Because substantial evidence exists to support the Board's conclusion, we will enforce the order of the Board.
Since 1944, the Bell Telephone Company of Pennsylvania (Company) and the Pennsylvania Telephone Guild (Union) have entered into a series of collective-bargaining agreements with grievance and arbitration procedures for dispute resolution.
In early 1984, the Company suspended five employees for allegedly engaging in an unauthorized work stoppage. On March 26, 1984, the Company conducted a series of investigatory meetings to determine whether four other employees, all local union officials, had instigated the work stoppage. Union District President John Zawackis, one of the employees under investigation, attended and tape recorded all of the investigative meetings held that day. The Company objected to Zawackis's tape recording of the meetings. On the same day, the Company announced the suspension of union officers for three to five days for their involvement in the unauthorized work stoppage. Zawackis also recorded the meetings at which the suspensions were announced. Neither the investigatory meetings nor the meetings to announce suspension constituted grievance meetings under the contract.
In response to the suspensions, the Union initiated the grievance procedure. On April 3, 1984, after both parties waived the first two steps of the grievance procedure, a third level grievance meeting was held to consider the Union's protest of the suspensions of the five employees. Zawackis represented the Union; the Company was represented by Avery Robinson. Zawackis brought a tape recorder to the meeting.
Robinson immediately objected to the use of the tape recorder "for the processing of the grievance." Zawackis responded that he intended to tape record "the entire grievance . . . because . . . this here is [a] very unique situation, and we want the most accurate record of the grievance that we can possibly get." Robinson then repeated his objection to the tape recording, stating that "it [would inhibit the] open and honest discussion . . . necessary to resolve the grievance, [it would cause] people to talk for the record rather than try to solve the problem and address the grievance." Further, he maintained the taping would formalize the process and "[prevent] the flexibility needed in reaching a practical solution to the grievance." In spite of Robinson's objections, Zawackis insisted on recording the grievance meeting.
After a recess, the Company stated that it would permit the meeting to be recorded under protest if the Union would agree to use the tape-recording of the grievance as a test case before the Board and not tape any other meeting until the case was resolved by the Board. The Union refused. The Company repeated that it was ready to meet and discuss the grievances, but not while the recorder was running. In response, the Union accused the Company of violating the collective bargain contract. The meeting ended without discussion of the merits of the grievance.
On April 5, a separate third-level grievance meeting was held to consider the disciplinary suspensions of the four union officials. Zawackis again turned on the tape recorder and stated that the Union intended to record the grievance meeting. Robinson refused to discuss the grievance with the tape recorder on, although he was willing to discuss use of the recorder. Because the parties could not reach agreement on the use of the tape recorder, the April 5 meeting also was terminated without any discussion of the merits of the grievance.
The Company subsequently filed an unfair labor practice charge with the Board, claiming that the Union's insistence on tape-recording the grievance meetings constituted a violation of the duty to bargain in good faith under § 8(b)(3) of the National Labor Relations Act, 29 U.S.C. § 158(b)(3)(1982). The Administrative Law Judge (ALJ), however, ruled that the Union had not violated § 8(b)(3). He distinguished NLRB v. Bartlett-Collins Co., 639 F.2d 652 (10th Cir.), cert. denied, 452 U.S. 961, 69 L. Ed. 2d 971, 101 S. Ct. 3109 (1981), which held that a party's insistence on tape recording collective bargaining negotiations constituted an unfair labor practice, on the ground that grievance meetings differed substantially from collective bargaining negotiations.
On appeal to the NLRB, the Board disagreed with the ALJ, stating that grievance meetings and collective bargaining negotiations are substantially similar. Adopting the reasoning of Bartlett-Collins, the Board found that the use of a record could inhibit free and open discussions in grievance meetings as well as in collective bargaining sessions. With the use of a recorder, the Board declared, the goal of adjusting the grievance would become subordinate to the preparation of a record for later arbitration or litigation. Further, only some grievance proceedings are eventually submitted to arbitration. Thus, the adverse effects on the bargaining process outweighed the need for a verbatim transcript. The Board therefore held that the Union had violated the duty to bargain in good faith by insisting to impasse on the use of a recording device to record ...