Calmat

National Labor Relations Board - Board Decisions

Sep 2, 1986

281 N.L.R.B. 304 (N.L.R.B. 1986)

304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Arizona Portland Cement Company , a Division of
California Portland Cement Company , a Divi-
sion of Calmat and Local Lodge D296, Cement,
Lime, Gypsum & Allied Workers Division of
International Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmith, Forgers, and
Helpers, AFL-CIO. Case 28-CA-8107
2 September 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN , BABSON, AND
STEPHENS
On 18 April 1986 Administrative Law Judge
David G . Heilbrun issued the attached decision.
The Respondent and the General Counsel each
filed exceptions and a supporting brief, the Re-
spondent filed a brief in opposition to the General
Counsel's exception, and the Charging Party filed
an answering brief opposing the Respondent's ex-
ceptions.
The National Labor Relations Board has delegat-
ed 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 decided to affirm the judge's rulings, findings 2
' The Respondent has requested oral argument . The request is denied
as the record , exceptions, and briefs adequately present the issues and the
positions of the parties.
2 The General Counsel excepted to the judge's factual finding that at
the 8 November 1984 second -step grievance session Benjamin Franklin
Lewis, the Respondent 's corporate industrial relations director, advised
officers of the local union grievance committee that the Respondent
would not recognize any International representative of the Union at step
2 grievance meetings . We have reviewed the record and find merit in the
General Counsel's exception . Thus, as the General Counsel correctly
notes, Lewis was not present at that meeting but rather the Respondent
was represented by its plant manager , Thomas Brosnan The record fur-
ther establishes that the Respondent never explicitly stated on 8 Novem-
ber 1984 that it would refuse to recognize the Union 's International rep-
resentative at second-step grievance meetings . The uncontroverted testi-
mony establishes that , during that meeting , the Local Union 's recording
secretary , William Rice, told Brosnan that International Representative
Ernie Lamoureux was going to be the chairman of the local union com-
mittees, including its grievance committee The Respondent's only re-
sponse to this announcement was that this action was "unacceptable "
We agree with the judge that the charge is not time-barred under Sec
10(b) of the Act We do so, however , based on the evidence which clear-
ly establishes that at no time prior to 3 May 1985 did the Respondent
unconditionally and unequivocally notify the Union that it would refuse
to meet and recognize the Union's International representative as its
chosen representative at second -step grievance meetings Thus, because
the charge was filed within 25 days of the operative event , which oc-
curred 3 May 1985, we find the charge was timely filed . Accordingly, we
find it unnecessary to pass on the judge 's conclusion that the Respond-
ent's refusal to meet and recognize the Union's International representa-
tive at second-step grievance meetings should be viewed as a continuing
violation.
We agree with the judge that this matter is not one properly subject to
deferral under Collyer Insulated Wire, 192 NLRB 837 (1971), United Tech-
nologies Corp , 268 NLRB 557 (1984), or Dubo Mfg. Corp., 142 NLRB 431
(1963), as there is no contract in existence under which the parties are
mutually bound by an agreed-upon grievance -arbitration procedure We
thus find it unnecessary to pass on the judge 's reasoning that deferral is
unwarranted here because the issue involves a purely statutory right
and conclusions3 as modified and to adopt the rec-
ommended Order.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law
4.
"4. All employees employed by the Employer at
its plants in Colton, California [Local Union No.
89], Rillito, Arizona [Local Union No. 296], and
Mohave, California [Local Union No. 349], per-
forming work in the manufacture of cement or lime
and all work incidental thereto, excluding supervi-
sory and professional employees as defined in the
National Labor Relations Act and, further, all
other personnel as the parties have agreed upon or
may agree upon."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Arizona
Portland Cement Company, a Division of Califor-
nia Portland Cement Company, a Division of
Calmat, Rillito, Arizona, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Order, except that the attached notice is substi-
tuted for that of the administrative law judge.
S We find merit in the Respondent 's exception to the judge's descrip-
tion of the appropriate unit We shall modify the Conclusions of Law ac-
cordingly
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 collectively with
Local Lodge D296, Cement, Lime, Gypsum &
Allied Workers Division of International Brother-
hood of Boilermakers, Iron Ship Builders, Black-
smiths, Forgers, and Helpers, AFL-CIO, by refus-
ing to meet and bargain with the Union's designat-
ed representatives, including Ernie Lamoureux, for
processing grievances in the appropriate collective-
bargaining unit set forth below. The appropriate
unit is:
All employees employed by the employer at
its plants in Colton, California [Local Union
No. 89], Rillito, Arizona [Local Union No.
281 NLRB No. 30
ARIZONA PORTLAND CEMENT CO.
296], and Mohave, California [Local Union
No. 349], performing work in the manufacture
of cement or lime and all work incidental
thereto, excluding supervisory and professional
employees as defined in the National Labor
Relations Act and, further, all other personnel
as the parties have agreed upon or may agree
upon.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7
of the Act.
WE WILL meet and bargain , upon request, with
the Union's designated representatives, including
Ernie Lamoureux, for processing grievances in step
2 as arising at the Rillito plant.
ARIZONA PORTLAND CEMEMT COM-
PANY, A DIVISION OF CALIFORNIA
PORTLAND CEMENT COMPANY, A DI-
VISION OF CALMAT
Kenneth D. Meadows, for the General Counsel.
Thomas J. Kennedy (Snell & Wilmer), of Phoenix, Arizo-
na, for the Respondent.
Michael J. Stapp (Blake & Uhlig), of Kansas City, Kansas,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge. This
case was tried at Phoenix, Arizona, 4 February 1986.
The charge was filed by Local Lodge D296, Cement,
Lime, Gypsum & Allied Workers Division of Interna-
tional Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers, and Helpers, AFL-CIO (the
Union) 28 May 1985 and the complaint was issued 8 No-
vember 1985.1 The primary issue is whether Arizona
Portland Cement Company, a Division of California
Portland Cement Company, a Division of Calmat (the
Respondent) has continuously refused to meet with a
particular individual as duly designated by the Union to
discuss grievances relating to terms and conditions of
employment of certain employees in violation of Section
8(a)(1) and (5) of the National Labor Relations Act.
On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of
briefs filed by each party,2 I make the following
I All dates are in 1985 unless otherwise indicated.
2 Although not an authorized communication , I have noted the Re-
spondent's asserted clarification of the record as set forth in counsel's
letter dated 18 March 1986 . The Charging Party 's subsequent written
motion to strike this document is denied because no apparent prejudice is
present . The "serious misstatement of fact" raised by the Respondent
may be no more than inadvertence . There are several such instances in
the Charging Party's brief, as at pages 14 and 28 where the phrase
"Charging Party" was used to mean "Respondent " and the date "No-
vember 8 , 1984" was erroneously stated as "November 8, 1985 ," respec-
FINDINGS OF FACT
I. JURISDICTION
305
The Respondent maintains an office and place of busi-
ness in Rillito, Arizona, where it is engaged in the manu-
facture and sale of cement, annually in the course of
such operations selling and shipping goods and materials
valued in excess of $50,000 directly to customers located
outside the State of Arizona. The Respondent admits and
I find that it is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Basis of Analysis
A collective-bargaining relationship has existed be-
tween the Respondent and the Union for several dec-
ades. The appropriate unit as exclusively represented by
the Union has been traditionally and consistently defined
in the series of collective-bargaining agreements existing
between the parties over these past many years. Basically
the unit comprises three manufacturing facilities, two in
California and one in Rillito, Arizona, which is the only
facility directly involved in this proceeding. A separate
local union exists at each of the three facilities, and the
Arizona operation here involved is a divisionalized com-
ponent of a corporation which is itself a division of a
parent Delaware corporation. Officers of the Local
Union at Rillito engage in certain separate contract ad-
ministration, however International representatives of the
Union itself and counterpart labor relations functionaries
of the Respondent regularly deal on the multifacility
basis.
The established contract provisions which structure
the grievance and arbitration mechanism in use between
the parties were found in former contractual articles
XVI and XVIII. They are essentially typical in terms of
industrial grievance processing to the point of final and
binding arbitration, with a multistep procedure for pro-
gressively more intensive consideration of pending griev-
ances. While contract language did not expressly author-
ize nor prohibit the presence and active participation of
International representatives at the plant level step 2 of
grievance processing, the fact is that with rare exception
such an individual had not been so involved in the past.
Following expiration of the last actual contract be-
tween the parties on 30 April 1984, bargaining continued
to a point of impasse that summer . On 20 June 1984 the
Respondent unilaterally implemented its final contract
offer including a grievance and arbitration procedure not
substantially different from what had long existed. Fol-
lowing this an increase in the number of grievance filings
was experienced, and at a bargaining meeting between
the parties at the Rillito facility on 8 November 1984
Corporate Industrial Relations Director Benjamin Frank-
lin Lewis advised officers of the committee from Local
D296 that the Respondent would not recognize any
International representative of the Union at step 2 griev-
tively. Nevertheless , the Respondent's concerns respecting the case issue
of deferral have been considered in reaching ultimate decision.
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ance meetings. William Paul Rice, the Union's recording
secretary, testified that the local officers disputed this po-
sition and Rice subsequently on 6 February wrote to
Plant Personnel Manager Fran Young in
"reaffirm[ation]" of the Union's outlook on this subject.
Lewis, however, testified that he had advised Plant Man-
ager Thomas J. Brosnan shortly after this date not to
deal with an International representative at step 2, and
Brosnan corroborates that he was so advised by the cor-
porate labor relations specialist.
On 3 May a step 2 meeting was to take place on ap-
proximately 60 accumulated and pending grievances at
the Rillito plant. International Representative E. J.
(Ernie) Lamoureux, who operates from a California
office convenient to the Respondent's facilities in that
State, was present with the local bargaining committee
for this scheduled meeting. When Brosnan appeared at
the meeting place with others he immediately questioned
what Lamoureux was doing there. Lamoureux answered
that he intended to serve as chairman of the bargaining
committee for purposes of the day's discussion of griev-
ances. Brosnan refused to recognize this status, offering
instead for Lamoureux to remain as a mere observer.
The upshot was that Lamoureux was not permitted to
carry out his intended function, and later a new group of
grievances was filed contending that the Respondent had
by its conduct on 3 May forfeited on the merits of nu-
merous then-pending grievances. Statistics of the Re-
spondent establish that from June 1984 onward the radi-
cally high number of 493 grievances had been filed at
Rillito, 37 of which eventually went to step 3 consider-
ation and 1 to arbitration. It is undisputed that Interna-
tional representatives of the Union have had and contin-
ue to have the clear right to full participation in griev-
ance discussions at the step 3 level and higher. In the
course of later dealings, the Respondent invited the
Union to grieve the issue presented here.
B. Analysis
In Native Textiles, 246 NLRB 228, 229 (1979), the
Board stated:
The right of employees to designate and to be
represented by representatives of their own choos-
ing is a basic statutory policy set forth in Section 7
of the Act and a fundamental right guaranteed em-
ployees by Section 7 of the Act. When it is alleged,
as here, that an employer is refusing to recognize a
designated representative of its employees, especial-
ly for a matter of such obvious importance to em-
ployees as processing grievances, it is not simply a
matter of contract interpretation but rather an al-
leged interference with a basic statutory right of
employees that this Board is entrusted with protect-
ing. Accordingly, it is not a matter to be deferred to
arbitration, but rather one which requires the Board
to invoke its jurisdiction and exercise its expertise.
Lamoureux is a former active employee of the Re-
spondent, now on extended leave of absence for union
business, and is a continuing member of Local D296. He
has functioned routinely for several years as an authorita-
tive official on the Union 's side of this multifacility col-
lective-bargaining relationship . There is no claim of dis-
qualification based on personality or temperament ; rather
the Respondent argues only the abstract point that an
International representative 's participation at the provin-
cial step 2 phase of grievance handling would be disrup-
tive and frustrating to the overall objectives of such a
joint effort . But this claim has no substantiation in fact or
law, and without more or a successful defense on some
other ground the Respondent 's position is not validly as-
sumed . Thus the rationale of Native Textiles shall control
unless escaped by some affirmative defense of which sev-
eral have been raised.
The Respondent contends that the matter is time-
barred under Section 10(b) of the Act. The reasoning
here is that notice of intent not to recognize Lamoureux
occurred early in November 1984 yet the charge was not
filed until late May when more than 6 months had
passed . The General Counsel contends that this alleged
8(a)(5) violation should be viewed as a continuing one,
which is how language of the complaint has been
couched . Given that a viable collective -bargaining rela-
tionship is a dynamic ongoing condition between parties
to the labor-management process, I agree that each day
in a position such as the Respondent has here assumed
represents a new test of whether the position is lawfully
taken . On this basis I do not find the complaint to be un-
timely within the meaning of Section 10(b).3
The Respondent next contends that the issue should be
deferred to arbitration under Collyer Insulated Wire, 192
NLRB 837 (1971 ), and United Technologies Corp., 268
NLRB 557 (1984). I fully reject this argument for it is a
pure statutory right that is involved , not one that takes
any essence from the collective-bargaining relationship,
any present contract, or the "imposal" under which the
parties are now operating . The Union has declined to at-
tempt any arbitration of the issue , preferring instead to
have the matter resolved through processes of the Board.
There is no issue that is cognizable for an arbitral ruling,
nor would the requisite contractual basis of an arbitra-
tor's authority be present . For these reasons deferral
under the Collyer doctrine is inappropriate , and Dubo
Mfg. Corp., 142 NLRB 431 ( 1963), similarly fails to
apply.
The Respondent further contends that the Union is es-
topped from objecting to Lamoureux 's exclusion from
step 2 grievance discussions because it has utilized the
grievance and arbitration procedures available under the
Respondent 's implemented proposal as made effective
from summer 1984 onward. Here the argument is that
the Respondent has reasonably fixed a requirement that
only plant level representatives of the Local Union are
S Respondent's reliance on Postal Service Marina Center, 271 NLRB
397 (1984), is unavailing for it is clearly distinguishable from this case In
Postal Marina the Board keyed to the date of written notification of re-
moval from employment as commencement of a 10(b) period. Unique cir-
cumstances of postal service employment delayed an actual dropping of
the individual from employment rolls for seyeral months However, this
was held not to advance the time from which the 10(b) period was to be
measured There is insufficient analogy between such facts and the case
here to elevate the verbal exchange in November 1984 to an event which
is itself an actionable unfair labor practice for 10(b) purposes
ARIZONA PORTLAND CEMENT CO.
entitled to discuss and negotiate any resolution of griev-
ances at the second step. Contrarily I find no convincing
basis for this assertion . Although a formal collective-bar-
gaining agreement does not exist , it is the abstract obliga-
tion of the continuing collective-bargaining relationship
that results in regular-appearing grievance handling be-
tween the parties . The Respondent has no basis to claim
that its hoped-for tactical limitation on how the Union
chooses to be present may be endorsed . I find there has
been no waiver on the Union 's part for several reasons.
It has first expressly informed that participation in the
grievance procedure subsequent to June 1984 is without
prejudice to any rights it might possess . The last contract
between the parties contained mere oblique references to
the Union's International representative , but not to
amount to a waiver of such individual 's presumptive
right to be present at grievance step 2 . In the exchange
of proposals during the last negotiations , the Union's lan-
guage respecting grievance procedure was silent con-
cerning its International representative 's right to be
present at the second step . Finally the Respondent's im-
plemented offer , even though containing much verbiage
on grievance step 3 procedure with frequent reference to
a union International representative at that step , does not
constitute a waiver of rights by the exclusive collective-
bargaining representative.
Finally the Respondent contends that a phenomenon it
labels from available information as the "solidarity and
unity program" is secretly and maliciously undermining
fair workings of the collective-bargaining relationship to
the extent that the described exclusion of Lamoureux is a
legitimate response . As to this the Respondent asserts
that "innumerable" grievances are being filed at the Ril-
lito facility for no reason other than to flood the system
and harass the Employer in retaliation for the parties
being in noncontract . As to this I affirm rulings made at
the hearing by which such an argument was rejected on
grounds of insufficient materiality , even if true, to the
key issue of the case . Inasmuch as a statutory right is in-
volved the Respondent 's position would be subject to the
same test regardless of whether assumed in a context of
few grievances, an average number , or the 493 actually
experienced in less than a year 's time . Thus I do not
accord any significance to the affirmative defense based
on claimed existence of a countering tactic by the Union.
The case devolves to its original status as one in which
a fundamental entitlement of the collective-bargaining
process must be recognized . This is the right of either
labor or management to select representatives of its
choosing for participation in the various phases of a
complex collective-bargaining relationship and, absent
extreme reason to the contrary, to be free of interference
in the process from the opposite party. Notably, Lewis
even recalled that in "special" cases an International rep-
resentative had participated in past step 2 grievances, but
in such "special" cases he illustrated nothing more
unique than "a discharge issue." This only serves to
highlight the plain fact that nothing in the background of
Lamoureux's dealings with Respondent nor any present
prospects of how his behavior might manifest gives any
basis for him to be precluded from discretionary partici-
pation as lead spokesman for employees at this facility in
307
regard to the important matter of attempting resolution
of grievances at the final plant level . Accordingly, I hold
that principal allegations of the complaint have been ade-
quately supported from the proofs.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By refusing about May 3, 1985 , and continuing to
date, to meet and bargain with E. J. (Ernie) Lamoureux
as the Union's designated representative for processing
grievances , the Respondent has violated Section 8(a)(1)
and (5) of the Act.
4. The appropriate bargaining unit is:
All employees employed at Colton, California, Ril-
lito, Arizona, and Mohave , California, performing
work in the manufacture of cement or lime and all
work incidental thereto, and further, all other per-
sonnel as the parties may agree upon , excluding su-
pervisory and professional employees as defined in
the National Labor Relations Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in, and
is engaging in, certain unfair labor practices , I shall order
it to cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies of the
Act.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed4
ORDER
The Respondent, Arizona Portland Cement Company,
a Division of California Portland Cement Company, a
Division of Calmat , Rillito, Arizona, its officers , agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Local Lodge D296,
Cement, Lime, Gypsum & Allied Workers Division of
International Brotherhood of Boilermakers , Iron Ship
Builders, Blacksmiths, Forgers, and Helpers , AFL-CIO
by refusing to meet and bargain with the Union 's desig-
nated representatives , including E. J. (Ernie) Lamoureux,
for processing grievances in step 2 as arising at the Ril-
lito, Arizona facility.
4 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.
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Meet and bargain , on request of the above-named
Union , with the Union's designated representatives, in-
cluding E. J. (Ernie) Lamoureux, for processing griev-
ances in step 2 as arising at the Rillito, Arizona facility.
(b) Post at its Rillito, Arizona premises copies of the
attached notice marked "Appendix."s Copies of the
notice, on forms provided by the Regional Director for
Region 28 , after being signed by the Respondent's au-
thorized representative , shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable 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 Re-
spondent has taken to comply.
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."