Calmat

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."