Holyoke Water Power Co.

National Labor Relations Board - Board Decisions

Jan 11, 1985

273 N.L.R.B. 1369 (N.L.R.B. 1985)

HOLYOKE WATER POWER CO. 1369
Holyoke Water Power Company and Local 455,
International Brotherhood of Electrical Work-
ers, AFL-CIO. Case 1-CA-20618
11 January 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 31 August 1983 Administrative Law Judge
Martin J. Linsky issued the attached decision. The
Respondent, the Charging Party,' and the General
Counsel filed exceptions and supporting briefs, and
the Respondent and the Union filed answering
briefs.2
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 3 and
conclusions for the reasons set forth below and to
adopt the recommended Order as modified.
The record shows that the Respondent operates
a power plant which includes a Forced Draft Fan
Room (fan room). The fan room contains two fans
which force air into the Respondent's burners as a
part of the combustion process. No one disputes
that the fan room is very noisy, and Respondent's
Station Superintendent Robert Dwyer acknowl-
edged that there is a noise problem there. The Re-
spondent provides earmuffs for those who must
enter this room and has posted notices that the fan
room is a "High Noise Area. Hearing Protection
Must be Worn." Although no employees work full
time in the fan room, the Respondent's mechanics
and operators enter the room periodically to per-
form maintenance and repair work.4
The Respondent and the Union have had a col-
lective-bargaining relationship since 1971. On 11
January 1983 the Union requested that the Re-
spondent permit the Union's industrial hygienist to
have access to the fan room to survey potential
health and safety hazards. The Respondent denied
the Union's request but gave the Union a summary
of an overall noise survey performed in August
Hereafter the Union
2 The Respondent has requested oral argument. The request is denied
as the record, the exceptions, and the briefs adequately present the issues
and the positions of the parties
3 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are Incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
4 In sec. III,B of his decision, the judge stated that mechanics are usu-
ally there for an 8-hour day when they go into the fan room. However,
Respondent's mechanic William O'Rourke testified that the amount of
tune spent in the fan room varies. Be said that routine preventative main-
tenance entails about 15 minutes while work on the pump is usually an 8-
hour job.
1982 by a hygienist engaged by the Respondent.
This survey did not specifically cover the noise
level of the fan room, but rather showed the
weighted average of noise level exposures of cer-
tain employees. The Respondent later directed its
test coordinator, Richard Ward, to take a noise
level reading in the fan room and supplied the
Union with a copy of Ward's report. Ward, who is
not an industrial hygienist, testified that he was un-
aware of whether conditions in the fan room at the
time of his reading were representative of its usual
conditions.
The judge found that the Respondent was obli-
gated to grant access to the fan room to an indus-
trial hygienist of the Union's choice and that the
Respondent violated Section 8(a)(1) and (5) of the
Act by denying the Union's request for such
access. In so doing, the judge noted the obligation
of an employer to provide a union with informa-
tion relevant and necessary to the union's perform-
ance of its representation duties. He noted also that
an employer is obligated to bargain on request
about health and safety conditions since they are
terms and conditions of employment. Then, relying
on Winona Industries, 257 NLRB 695 (1981), the
judge noted that requests for access to survey for
safety hazards are in the nature of requests for in-
formation and that access cannot be denied. He
found that granting access would not cause the Re-
spondent any undue hardship, and he noted the tes-
timony of the Union's hygienist that its testing
would take, at most, 1 day to complete.
In finding a violation, the judge rejected the Re-
spondent's contentions that (a) access is irrelevant
and unnecessary to the Union's representation
duties, and (b) the Respondent did supply the infor-
mation sought, albeit in the form of the test results
then in the Respondent's possession. The judge
noted that the many hazards inherent in exposure
to high noise levels certainly make this matter rele-
vant to the Union's representation duties. He fur-
ther found the test results given the Union were in-
adequate for the Union's purposes. He noted that
the first test merely gauged the average noise level
to determine if it fell within OSHA standards, and
he noted the undisputed testimony of the Union's
hygienist that hearing can be damaged even where
the average noise level falls within OSHA stand-
ards. Finally, he noted that there was some dispute
as to the method and results of these tests.
In its exceptions the Respondent argues, inter
alia, that the Union's request for access must be
balanced against the Employer's property rights
and that, here, its property rights must prevail be-
cause the Respondent has provided the Union with
studies and has allowed the Union's business agent
273 NLRB No. 168
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
access to the fan room. Accordingly, the Respond-
ent contends, it has provided the Union with an al-
ternate means of obtaining the needed information,
thus obviating the need for access to its premises.
We agree with the Respondent's contention that
an employer's right to control its property is a
factor that must be weighed in analyzing whether
an outside union representative should be afforded
access to an employer's property. NLRB v. Bab-
cock & Wilcox Co., 351 U.S. 105 (1956). Thus, we
disagree with the judge's analysis insofar as it finds
that a request for access is tantamount to a request
for information; that is, the union is entitled to
access if it is shown that the information sought is
relevant to the union's proper performance of its
representation duties. While the presence of a
union representative on the employer's premises
may be relevant to the union's performance of its
representative duties, we disagree that that alone,
ipso facto, obligates an employer to open its doors.
Rather, each of two conflicting rights must be ac-
commodated. Fafnir Bearing Co. v. NLRB, 362
F.2d 716 (2d Cir. 1966). First, there is the right of
employees to be responsibly represented by the
labor organization of their choice and, second,
there is the right of the employer to control its
property and ensure that its operations are not
interfered with. As noted by the Supreme Court in
Babcock & Wilcox, supra, 351 U.S. at 112, the Gov-
ernment protects employee rights as well as prop-
erty rights, and la]ccommodation between the
two must be obtained with as little destruction of
one as is consistent with the maintenance of the
other."
Thus, we are constrained to balance the employ-
er's property rights against the employees' right to
proper representation. Where it is found that re-
sponsible representation of employees can be
achieved only by the union's having access to the
employer's premises, the employer's property
rights must yield to the extent necessary to achieve
this end. However, the access ordered must be lim-
ited to reasonable periods so that the union can ful-
fill its representation duties without unwarranted
interruption of the employer's operations. On the
other hand, where it is found that a union can ef-
fectively represent employees through some alter-
nate means other than by entering on the employ-
er's premises, the employer's property rights will
predominate, and the union may properly be
denied access.
In sum, the circumstances presented in each case
involving a request for access must be carefully
weighed, and each of the conflicting rights must be
carefully balanced and accommodated in reaching
a decision. We shall in the future analyze such
cases in this fashion, and we overrule those prior
Board cases such as Winona Industries, supra, to
the extent that they set forth an inconsistent analy-
sis.
Applying this analysis to the instant case, we
find that the Respondent's property rights, on bal-
ance, are outweighed and that the Respondent
must afford the union hygienist reasonable access
to its fan room to conduct noise level studies.
First, we agree with the judge that health and
safety conditions are a term and condition of em-
ployment about which an employer is obligated to
bargain on request. Clearly, health and safety data
is relevant to the Union's representation obligation.
Minnesota Mining Co., 261 NLRB 27 (1982). It is a
matter of common knowledge that exposure to ex-
cessive noise presents potential health hazards, and
in this case no one disputes that the Respondent's
fan room is very noisy. The Respondent's safety
superintendent acknowledged that there is a noise
problem there. In these circumstances, the employ-
ees' right to responsible representation entails the
Union's obtaining accurate noise level readings for
the fan room to ascertain the extent of the hazard
and to suggest means of ensuring that employees
are properly protected. Balancing this right against
the Respondent's asserted property rights, we find
that, here, the property rights must yield to the
extent necessary to enable the union hygienist to
independently conduct his noise level tests.
We note that the Respondent says that access
would entail interference with production; howev-
er, we also note that the fan room is not a produc-
tion area and no employees work there full time.
Rather, only mechanics and operators enter peri-
odically to maintain and repair the equipment. In
these circumstances, it appears that the presence of
a union hygienist in the fan room would occasion
little if any interference with the production proc-
ess. Moreover, for the reasons relied on by the
judge, we agree that the test results which the Re-
spondent supplied are insufficient to meet the
Union's purposes. Nor is the Respondent's willing-
ness to permit the Union's business agent to enter
the fan room sufficient absent evidence that the
business agent is qualified to perform the tests and
evaluate the results.
Accordingly, we agree with the judge that the
Respondent must permit a union hygienist to enter
its fan room to test for noise hazards. However,
since the judge did not in his recommended Order
place any restrictions on the access ordered, we
shall modify the recommended order to provide
that the access be for a reasonable period sufficient
to allow the union hygienist to fully observe and
survey noise level hazards. This limitation is in line
HOLYOKE WATER POWER CO. 1371
with our resolve to accommodate the conflicting
rights with as little destruction of one as is consist-
ent with the maintenance of the other.5
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Holyoke Water Power Company, Hol-
yoke, Massachusetts, its officers, agents, successors,
and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph 2(a).
"(a) On request, grant access, by an industrial
hygienist designated by the Union, to the FD fan
room for a reasonable period sufficient to permit
the hygienist to fully observe and survey noise
level hazards."
2. Substitute the attached notice for that of the
administrative law judge.
5 For this reason, and because such access has not even been shown
necessary in the first place, we reject the contention of the General
Counsel and the Union that the recommended Order should be modified
to provide for plantwide access.
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 Local 455, International Brotherhood of Elec-
trical Workers, AFL-CIO, by denying the Union's
request for access to the Forced Draft Fan Room
at our Mt. Tom facility by an industrial hygienist
designated by the Union to observe and survey
noise level hazards which are relevant to the
Union's discharge of its bargaining obligation.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WE WILL, on request, grant access by an indus-
trial hygienist designated by the Union to the
Forced Draft Fan Room for a reasonable period
sufficient to permit the hygienist to fully observe
and survey noise level hazards.
HOLYOKE WATER POWER COMPANY
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. This
case arose upon a charge filed by Local 455, Internation-
al Brotherhood of Electrical Workers, AFL-CIO (the
Union) on January 14, 1983. The complaint, which
issued on February 25, 1983, alleges that Holyoke Water
Power Company (Respondent) violated Section 8(a)(1)
and (5) of the National Labor Relations Act (the Act) by
refusing to give the Union's industrial hygienist access to
the forced draft fan room (FD fan room) at Respond-
ent's Mt. Tom location to observe and survey safety haz-
ards regarding noise levels since the Union's request on
January 11, 1983.
Respondent, in its answer, denies the commission of
any unfair labor practices. Although Respondent admit-
ted it denied access it claims that access is not necessari-
ly for, or relevant to, the Union's function as the exclu-
sive bargaining representative of unit employees.
A hearing was held on April 11 and 12, 1983, in
Boston, Massachusetts. All parties filed briefs. Based on
the entire record in the case, including my observation of
the witnesses and their demeanor, I make the following'
FINDINGS OF FACT
I. JURISDICTION
Respondent, Holyoke Water Power Company, is, and
has been at all times material herein, a corporation orga-
nized under and existing by virtue of the laws of the
Commonwealth of Massachusetts. At all times men-
tioned, Respondent has maintained its principal office
and place of business at One Canal Street in Holyoke,
Massachusetts, and is now and continuously has been en-
gaged at said plant and others generating and supplying
electric power to residential and commercial customers.
In the course and conduct of its business operations,
Respondent annually derives gross revenues in excess of
$250,000 and purchases and receives at its Holyoke, Mas-
sachusetts location products, goods, and materials valued
in excess of $50,000 directly from points outside the
Commonwealth of Massachusetts. The Respondent
admits and I find that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that the Union, Local 455,
International Brotherhood of Electrical Workers, AFL-
CIO, is, and has been at all times material, a labor orga-
nization within the meaning of Section 2(5) of the Act.
1 The General Counsel's motion to correct the transcript is granted.
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. Issue Presented
The only issue is whether Respondent violated Section
8(a)(1) and (5) of the Act by refusing to give an industri-
al hygienist designated by the Union access to the FD
fan room, at Respondent's Mt. Tom facility to observe
and survey safety hazards regarding noise levels.
B. Background and Facts
Since 1971 the Union has been the exclusive collec-
tive-bargaining representative of all employees of Re-
spondent employed in its production and operations de-
partment at its Mt. Tom station, Riverdale station,
Hadley Falls station, and Holyoke Hydro station in Hol-
yoke, Massachusetts. The Union has been recognized as
such representative by Respondent and they have execut-
ed successive collective-bargaining agreements.
Before 1981 Respondent generated power using oil. In
1981, however, the Mt. Tom facility began converting to
coal as its power source. This change was subject to a
contract reopener under the parties' 1980-1982 collective
bargaining agreement.
In the fall of 1981, Respondent and the Union began
negotiations on the effect of this conversion on the bar-
gaining unit employees. Health and safety matters were
among the issues discussed in the reopener. During the
negotiations on the coal reopener, Respondent retained
an acoustical engineering firm, Goodfriend Associates, to
make a presentation to the Union concerning noise expo-
sure in the plant. The Union retained an industrial hy-
gienist, Richard Youngstrom, to help it interpret the
report presented by Respondent and to help the Union
identify safety hazards and make recommendations for
controlling such hazards.
The coal reopener negotiations concluded in Novem-
ber 1981, with various points of agreements between the
parties. The contract containing the coal reopener was
due to expire on July 1, 1982, and the parties negotiated
toward a new contract from May 1982 until June 1982.
The Union raised several health and safety matters in
those negotiations. A new collective-bargaining agree-
ment was reached, and is currently in effect.
After the coal conversion was finalized, the Union re-
quested that its industrial hygienist be given access to
Respondent's premises to survey safety hazards. This re-
quest was denied and led to an unfair labor practice
charge, which was settled under the terms of a settle-
ment agreement permitting access by the Union's indus-
trial hygienist to survey hazards associated with the con-
versation to coal. The FD fan room was not mentioned
in the settlement agreement.
Edward Collins, the Union's business manager and fi-
nancial secretary, and Youngstrom met with representa-
tives of the Respondent on January 11, 1983, to discuss
compliance with the settlement agreement. At this meet-
ing, access was granted to those parts of the plant cov-
ered in the settlement agreement but access was denied
to the FD fan room. Access was denied by Respondent's
plant superintendent Robert Dwyer and Regional Per-
sonnel Manager Donald Riga. The only reason given for
this denial was that the FD fan room was not covered in
the settlement agreement.
Youngstrom conducted a survey of potential health
and safety hazards on January 11, 1983. The results of
this survey and his recommendations were included in a
report submitted to the Union and used by the Union in
collective bargaining with respect to health, and safety
matters.
Respondent provided the Union with a summary of a
noise survey done by industrial hygienist designated by
Respondent, i.e., Oneil Banks. The survey was taken in
August 1982, but did not include the FD fan room.
The FD fan room is a room containing two forced-
draft fans which force air into the station's burners. The
fans, driven by motors, are part of the combustion proc-
ess of Respondent. The FD fan room is approximately 20
feet by 40 feet and 30 feet high. In addition to the two
fans the room contains two limitex sump pumps, various
piping, four ash hoppers that collect ash, and louvers
which are built into the walls and vary the amount of air
pulled into the room.
The construction and operation of the FD fan room
has been the same since it was built in 1960, however,
the conversion to coal has increased the percentage of
time the fans are required to operate at full speed from
60 percent to about 95 percent of the time.
While no employees are assigned to work in the FD
fan room full time, employees must enter the room in the
course of their jobs for various purposes and at various
times. Mechanics must enter the FD fan room to repair
pumps, repair leaks, and do preventive maintenance and
other duties to ensure proper functioning of the fans and
meters. Mechanics are usually in the room for an 8-hour
day when they go into the FD fan room. On several oc-
casions mechanics have spent 2 or 3 straight days work-
ing in the room, depending on the job. Preventive main-
tenance done by mechanics requires about 15 or 20 min-
utes in the FD fan room once every month. Utility oper-
ators go into the FD fan room every 2 hours during an
8-hour shift and remain in the room between 5 and 10
minutes each time as part of their "rounds." Those
"rounds" include checking bearings, checking oil levels,
opening and closing valves, and checking that nothing is
out of order with either sump pump. Occasionally utility
operators have to spend up to an hour in the room.
There is no dispute about the fact that the FD fan
room is extremely noisy. Witnesses testifying for both
the General Counsel and Respondent testified that the
room was so noisy that a conversation was impossible
and you had to read lips to communicate. Respondent
has signs posted outside the FD fan room which warn,
"High Noise Area Hearing Protection Must Be Worn."
Employees testified as to the effects on them of exposure
to noise in the FD fan room. These effects included ring-
ing in the ears, temporary decrease in hearing ability and
excessive fatigue. A year or so prior to the hearing in
this case an employee named James Parnicky, a utility
operator, had complained to the Union about the noise in
the FD fan room. In addition, during the reopener talks
in November 1982, Norman Racine, a mechanic, had
likewise complained about the noise in the FD fan room.
HOLYOKE WATER POWER CO. 1373
Respondent provides earmuffs or earphones for em-
ployees and others who must go into the FD fan room.
Employees credibly testified that they were less than sat-
isfied with this protection, explaining that the earmuffs
or earphones often fell off in the course of their work
and were difficult to adjust over other required equip-
ment such as hard hats.
After denying the Union's request for access to the
FD fan room, Respondent discovered that it had never
measured the noise level in the room. On February 8,
1983, Respondent directed Test Technician Supervisor
Richard Ward to conduct readings on the noise level in
the FD fan room. Ward testified that since he was not an
industrial hygienist, he could not make any recommenda-
tions about what to do with his readings He also testi-
fied that he had no experience designing controls and
had no way of knowing if he took his readings under
representative conditions. Respondent sent a copy of
Ward's report to the Union on March 18, 1983.
C. Analysis
It is well established that an employer has a duty to
provide a union with information which is reasonably
necessary and relevant to the Union's duty to represent
its members. Equally settled is that safety and health
conditions are terms and conditions of employment about
which an employer is obligated to bargain on request.
Gulf Power Co., 156 NLRB 622 (1966), enfd. 384 F.2d
822 (5th Cir 1967); Minnesota Mining & Mfg. Co., 261
NLRB 27 (1982). Respondent contends that the access
requested here by the Union is not reasonably necessary
and relevant to the Union's duty to represent employees
because the Union has not "demonstrated a safety con-
cern among employees." The essence of this contention
is that no employee on the union-management safety
committee raised the issue at those meetings and no
grievance has been filed, therefore, the information is not
relevant. Respondent argues further that it has demon-
strated an awareness of the high noise levels and has
taken steps to remedy the situation.
Employee requests for union action is not determina-
tive of a union's obligation to bargain regarding the
matter. It is noted, however, that the reopener talks
raised the issue of noise levels in parts of the plant and
reasonably and legitimately raised the issue of noise gen-
erally as an issue the Union should concern itself with.
As noted earlier utility operator James Parnicky and me-
chanic Norman Racine had complained about noise in
the FD fan room and Racine had brought this to the at-
tention of Respondent 2 months before access to the FD
fan room was requested.
Respondent also contends that because no employees
work full time in the FD fan room, the information
about noise there is relevant. Testimony from industrial
hygienists retained by the Respondent and the Union ex-
plained the hazard of exposure to noise at certain levels.
The hazards include damage to the ear, loss of hearing,
nervousness, hypertension, and psychological problems.
The probability of such problems certainly are relevant
to the Union's duty to represent its members.
The Board held recently that an employer's refusal to
give access to a union industrial hygienist for inspection
and survey of safety hazards, violates Section 8(a)(1) and
(5) of the Act. Winona Industries, 257 NLRB 695 (1981).
Such access is treated as in the nature of information and
access cannot be denied. The facts here put this case
squarely within the principles of Winona, supra. In
Winona, as here, Respondent argued that it was not obli-
gated to give access to the Union's industrial hygienist
because even if relevant, the information sought had
been given or was available through other means. The
results of a noise dosimeter study taken at Respondent's
Mt. Tom facility in August 1982, by Respondent's indus-
trial hygienist, Oneil Banks, were given to the Union.
The results of a later sound level test performed in the
FD fan room by Richard Ward, a test coordinator for
Northeast Utilities Service Company, Respondent's
parent company, were also provided. These results do
not change the Union's need for access by its industrial
hygienist. The study from Banks did not focus specifical-
ly on several items which the Union needed to test.
There was also some dispute as to the method and results
of those tests. Respondent's study was not sufficient to
give the Union information which it needed to recom-
mend and design controls, but rather checked an average
noise level to see if it was within OSHA compliance. It
is informative to note that in preparing for trial in this
case Respondent's lead counsel, Jason Berger, physically
inspected the FD fan room and had one of his witnesses
testify as to what happened when the witness and Berger
tried to have a conversation inside the FD fan room.
There was unrebutted testimony by the Union's indus-
trial hygienist that hearing damage can take place even
when weighted average noise levels are within OSHA
compliance. This information was not supplied. Banks
admitted that his study could not tell for what period of
time an employee had been exposed to peak noise levels,
for how long, or how many times. He also admitted that
factors such as the presence or absence of windows and
doors and whether or not they were opened would
affect noise level exposure perhaps significantly, but such
things were not in his reports. All of these omissions
make the offered studies inadequate for the Union's pur-
poses and no adequate substitute for permitting access to
the FD fan room by the Union's industrial hygienist.
Furthermore, granting access to the Union's industrial
hygienist would not cause any undue hardship or incon-
venience to Respondent or interfere with its business op-
erations. Nothing in the FD fan room was confidential in
nature. The Union-designated industrial hygienist Rich-
ard Youngstrom testified the test would take probably
less than half a day or at most 1 day. After the Union's
January 11, 1983 request for access was denied, Re-
spondent had tests run and turned the results over to the
Union. It could have just as easily granted the Union
that same access to run its own test and should have.
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that Respondent had an obligation to grant
access to the FD fan room to the Union's industrial hy-
gienist. By denying such request, Respondent refused to
bargain in good faith and violated Section 8(a)(1) and (5)
of the Act.2
CONCLUSIONS OF LAW
1 Respondent, Holyoke Water Power Company, is,
and has been at all times material herein, an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2 Local 455, International Brotherhood of Electrical
Workers, AFL-CIO is, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act
3. By denying the Union's request for access by an in-
dustrial hygienist chosen by the Union to the FD fan
room at Respondent's Mt. Tom facility to observe and
survey noise level hazards, which were relevant to the
Union's discharge of its bargaining obligation, Respond-
ent refused to bargain in good faith and violated Section
8(a)(1) and (5) of the Act.
REMEDY
Having found that Respondent violated Section 8(a)(1)
and (5) of the Act, I recommend that it be ordered to
cease and desist therefrom and in any like or related
manner interfering with, restraining, or coercing employ-
ees in the exercise of the rights guaranteed them in Sec-
tion 7 of the Act. I also recommend that Respondent be
ordered to take certain affirmative action necessary to ef-
fectuate the policies of the Act. I will not recommend a
broader remedial order than the posting of a notice and
the granting of access to the FD fan room. However,
future requests for access to parts of the plant by the
Union should be treated by Respondent consistent with
the principles underlying Winona, supra.
2 An analysis of the rationale underlying the "time study cases" cited
by the General Counsel also support the General Counsel's position that
the denial of access violated the Act The "time study cases" concluded
that to deny the Union's time study expert access to conduct his own
tests even though Respondent turned over the results of its time study
tests violated the Act Fafnir Bearing Co v NLRB, 146 NLRB 1582
(1964), enfd 362 F 2d 716 (2d Cir 1966), Kendall Co, 196 NLRB 588
(1972), Wilson Athletic Goods, 160 NLRB 621 (1968)
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 3
ORDER
The Respondent, Holyoke Water Power Company,
Holyoke, Massachusetts, its officers, agents, successors,
and assigns, shall
1 Cease and desist from
(a) Refusing to bargain in good faith with Local 455,
International Brotherhood of Electrical Workers, AFL-
CIO by denying the Union's request for access to the
FD fan room at Respondent's Mt. Tom facility by an in-
dustrial hygienist chosen by the Union to observe and
survey noise level hazards which are relevant to the
Union's discharge of its bargaining obligations.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, grant access to the FD fan room by an
industrial hygienist designated by the Union to observe
and survey noise level hazards.
(b) Post at its Mt. Tom facility in Holyoke, Massachu-
setts, copies of the attached notice marked "Appendix."
Copies of the notice, on forms provided by the Regional
Director for Region 1, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent 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 Re-
spondent has taken to comply.
3 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 Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
4 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"