3 State Contractors

National Labor Relations Board - Board Decisions

Mar 17, 1992

306 N.L.R.B. 711 (N.L.R.B. 1992)

711
306 NLRB No. 141
3 STATE CONTRACTORS
1 At one point in his decision, the judge inadvertently states that
the Union, on April 1, 1990, sent to the Respondent a second appeal
of the overtime grievance. The correct date of that appeal is April
1, 1991.
1 The charge names Local 4034 rather than 14034 as the Charging
Party and identifies Local 4304 as the majority representative of Re-
spondent’s employees. The mistake in number seems clearly inad-
vertent but in any event would not invalidate the charge which may
be filed by anyone. Likewise misidentification of the bargaining rep-
resentative is not fatal. A charge is not a pleading but need only be
sufficient to initiate an investigation. NLRB v. Ind. & Mich. Elec.
Co., 318 U.S. 9, 17–18 (1943). The charge in this case satisfied that
purpose.
2 At the hearing counsel for the General Counsel moved to amend
the complaint to allege that Respondent’s senior construction super-
intendent Nippert and president Monaco were supervisors within the
meaning of the Act and/or agents of Respondent. The motion is
granted, and the evidence supports the allegations of the amendment.
3 Respondent in its answer admitted the jurisdictional allegations
of the complaint including the allegation that it is an employer en-
gaged in commerce within the meaning of Sec. 2(2), (6), and (7) of
the Act. In its brief Respondent contends that the Board lacks juris-
diction because the record contains no evidence as to the ‘‘com-
merce’’ affected by the alleged unfair labor practices or as to how
such unfair labor practices affect, burden, or obstruct interstate com-
merce. I find that the admitted allegations of pars. 2 and 3 of the
complaint establish both that Respondent is engaged in interstate
commerce and that it meets the Board’s standards for the assertion
of jurisdiction. Even assuming that Respondent remains free to chal-
lenge the conclusionary allegations of par. 4 of the complaint, the
facts admitted in pars. 2 and 3 support the conclusion alleged in par.
4. NLRB v. Reliance Fuel Corp., 371 U.S. 224 (1963); Siemons
Mailing Service, 122 NLRB 81 (1958); 29 U.S.C. § 164(c).
3 State Contractors, Inc. and United Steelworkers
of America, Local 14034, AFL–CIO–CLC. Case
6–CA–23363
March 17, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On December 17, 1991, Administrative Law Judge
David S. Davidson issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
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,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, 3 State Contractors, Inc.,
Cecil, Pennsylvania, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Joann F. Dempler, Esq., for the General Counsel.
Donald J. Balsley Jr., Esq., of Pittsburgh, Pennsylvania, for
the Respondent.
Charles F. Leonard, of Pittsburgh, Pennsylvania, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Administrative Law Judge. This case
was tried in Pittsburgh, Pennsylvania, on July 18, 1991. The
charge was filed on February 8, 1991,1 and the complaint
was issued April 22, 1991. The complaint alleges that Re-
spondent violated Section 8(a)(5) and (1) of the Act by fail-
ing and refusing since October 1, 1990, to process two griev-
ances and repudiating the grievance provisions of its collec-
tive-bargaining agreement with United Steelworkers of
America and its Local 14034 (Union).2 Respondent denies
the commission of any unfair labor practices.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, is engaged as a contractor
in the building and construction industry with an office and
place of business in Cecil, Pennsylvania. It annually per-
forms services valued in excess of $50,000 outside of Penn-
sylvania. The Respondent admits and I find that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act3 and that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Union is the recognized collective-bargaining rep-
resentative for a unit of Respondent’s production and mainte-
nance employees, and has a collective-bargaining agreement
with Respondent effective by its terms from January 1, 1990,
to December 31, 1994. The agreement was negotiated by
Union Representative Charles Leonard and Respondent’s
senior construction superintendent Charles Nippert.
Article V of the collective-bargaining agreement sets forth
the contractual grievance procedure. In outline, it provides
for successive steps starting with discussion between the em-
ployee and the superintendent. If no satisfactory resolution is
reached, a written grievance may be filed to be answered by
the superintendent within 48 hours, followed by appeal with-
in 10 days for discussion between a representative of the
Union and a company official. If the grievance remains unre-
solved, it may be appealed to an impartial arbitrator. For sus-
pension and discharge cases, article VII of the agreement im-
poses an additional requirement that, ‘‘Any complaint arising
under Article must be appealed to the Company in writing
within forty-eight (48) hours after such suspension or dis-
charge or the particular case will be considered closed.’’
712 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 All dates are in 1990 unless otherwise indicated.
5 Nippert testified that McKenzie had authority to fire Flaherty
with Nippert’s approval.
6 Leonard testified that in advising Flaherty he decided that the
time limit for filing a grievance would not begin to run until Nippert
discharged Flaherty.
In April 1990,4 a group of employees asked their steward
to file a grievance over the way their overtime pay had been
computed for work performed during the week of Good Fri-
day. On April 20, Steward Dennis Ford prepared a written
grievance with the assistance of Union Representative Leon-
ard and presented it to the foreman on the job. The grievance
asserted that Respondent had violated the overtime provi-
sions of the contract by failing to pay overtime wages for
hours worked in excess of eight on a regular workday. The
job foreman replied that Respondent would not pay overtime
wages for less than 40 hours worked in the workweek.
A few days later Ford told Leonard that the grievance had
been denied, and on April 25, Leonard wrote Nippert appeal-
ing the grievance to the next step of the grievance procedure.
After receiving the appeal, Nippert arranged for a lunch
meeting between Leonard, himself, and Michael Monaco,
president of Respondent, whom Leonard had not previously
met. At that meeting there was some discussion of the over-
time grievance, and Monaco gave Leonard a letter explaining
how overtime payments were computed for the week in
question and why the Respondent believed that the payments
complied with the requirements of the collective-bargaining
agreement. Thereafter, on May 18 a second meeting was held
at Leonard’s office attended by Leonard, Ford, Monaco, and
Nippert to discuss the grievance and another problem relating
to mileage. Ford brought with him a brief written statement
explaining the Union’s position on the overtime computation.
At the end of the meeting the grievance remained unre-
solved.
On May 21, Leonard wrote Nippert as follows:
As all attempts to resolve grievance 1–90 have failed
and following our discussions (held in my office on
5/18/90), this letter will serve as an appeal of grievance
1–90 to arbitration. I have enclosed biographical
sketches of five arbitrators listed with the Federal Me-
diation and Conciliation Service, any one is satisfactory
to the union. If they are not acceptable please submit
your own list.
In the balance of the letter Leonard set forth a four point
proposal, ‘‘As a final gesture to attempt to resolve this
issue.’’ The letter concluded, ‘‘If this offer is not satisfac-
tory, proceed with the choosing of an arbitrator.
Leonard received no reply to the May 21 letter, and on
June 11 sent a further letter to Nippert as follows:
On May 21, 1990, I sent you correspondence con-
cerning the outstanding grievance. To date, I have not
received a reply.
I have enclosed copies of everything sent in the pre-
vious correspondence in order that there will be no op-
portunity for error.
Please respond within a reasonable amount of time—
failing to do so will leave no other alternative but to
seek legal enforcement of the collective-bargaining
agreement.
Again Leonard received no response. On July 12 Union
Counsel Milasich wrote Nippert asserting that Respondent
had a legal obligation to arbitrate the issues raised by the
grievance and that ‘‘unless within ten days of receipt of this
letter the Company notifies the USWA of its willingness to
arbitrate Grievance 1–90, the USWA will commence litiga-
tion to compel the Company to arbitrate that grievance and
to reimburse the USWA for its attorneys fees.’’
In the meantime, toward the end of June another grievance
was filed. On Thursday, June 21, Gary McKenzie, a jobsite
foreman, told employee James Flaherty that he would have
to work overtime. Flaherty replied that he could not work
overtime because of a personal problem. McKenzie refused
to permit him to leave, telling him that if he did not work
overtime, he would not have a job to return to. Flaherty left.
The next day, Flaherty spoke to Leonard about filing a
grievance. Leonard told him that the foreman did not have
authority to fire him.5 Leonard advised him to report back
to work on Monday and to see Nippert, telling him that if
he was going to be discharged, Nippert would have to do it.6
When Flaherty reported to work on the following Monday,
June 25, Nippert confirmed that Flaherty no longer had a job
and told him that he should file a grievance if he wanted to.
Flaherty went back to Leonard who immediately wrote a
grievance. Flaherty took it back to the steward who signed
and filed it that day. On June 26 Foreman McKenzie denied
the grievance, and on July 6 Leonard wrote Nippert appeal-
ing the grievance to the next step of the grievance procedure,
asking him to set a time and place for a meeting to discuss
the grievance. Leonard received no response to his July 6 let-
ter and on July 23 sent Nippert a further letter stating that
legal action also would be taken on the Flaherty grievance
in accord with union counsel’s July 12 letter.
On July 24, Monaco replied by letter to Union Counsel
Milasich’s July 12 letter. In the final paragraphs Monaco
wrote:
Mr. Milasich, your letter has been welcomed since this
situation has been exaggerated and at this point in time
I am bewildered as to our next required action. I can
not decipher whether I am to arbitrate, answer the May
20, 1990 letter as to contract changes, or specifically
address the letter dated May 14, 1990 by Mr. Denis
Ford. I am willing to discuss this with you if you de-
sire. I have no desire to spend the funds for arbitration
on this particular item, I feel this is not necessary if we
can open proper lines of communication with the inter-
ested parties and resolve this problem. I have attempted
to describe our frustration in answering a grievance
which on the surface is quite clear but has been
changed, expanded, modified and finally is apparently
being forced into arbitration.
Your cooperation and assistance in this matter would be
appreciated.
On July 30, Monaco responded to Leonard’s July 23 letter.
Monaco took issue with the Union’s version of the facts re-
lating to the Flaherty grievance, asserting that Flaherty had
quit and was not discharged. Monaco also asserted that
Leonard had failed to establish an adequate working relation-
7133 STATE CONTRACTORS
7 From Flaherty’s presence at the meeting it seems clear that the
Flaherty grievance was discussed, and from the testimony of Leon-
ard and Flaherty it is also clear that despite the fact that the Union
had not yet appealed the grievance to arbitration, Monaco stated that
he would not arbitrate the grievance. Although Leonard testified that
Monaco stated generally that he would decide whether grievances
had merit and that he would make the decision if a grievance would
go to arbitration, Flaherty tied the discussion to his grievance, and
there is no indication in the testimony of either that arbitration of
the overtime grievance was discussed during this meeting. Monaco
did not testify.
ship with Respondent and its employees. Monaco indicated
his willingness to discuss the matter further with union coun-
sel and proposed that the Union agree to eliminate the
Flaherty grievance based on a determination by the state em-
ployment security agency that Flaherty had quit voluntarily.
On August 3, Leonard wrote Monaco stating that Leonard
and not union counsel was the appropriate person with whom
Monaco should meet, reiterating the Union’s position that
Flaherty had been discharged and had not quit, and stating
that he would call to set up a meeting to smooth out relations
between Respondent and the Union as Monaco had indicated
that he desired.
On August 7 Leonard and Monaco met, with Flaherty
present, to discuss outstanding issues between them. After
some discussion of the composition of the grievance com-
mittee, Monaco said that he would not arbitrate the Flaherty
grievance and that it was his right to deny arbitration. Leon-
ard attempted to explain that it was not up to Monaco to ap-
prove or deny arbitration, and that either party had the right
to take a grievance to arbitration. However, Monaco contin-
ued to insist that he was not going to arbitration because the
grievance had no merit and Flaherty had voluntarily quit.7
Immediately after this meeting, Leonard sent the following
letter dated August 7 to Monaco relating to the Flaherty
grievance.
Please be advised, in accordance with Article V-Adjust-
ment of Grievances of the Collective-Bargaining Agree-
ment between 3-State Contractors, and the United Steel-
workers of America, the union hereby appeals Griev-
ance #3-90 to the third step of the grievance procedure;
i.e., arbitration.
I have enclosed biographical sketches of arbitrators that
are acceptable to the union.
Please advise me of your acceptance of one of these,
or supply me with a list that is acceptable to you, so
I may review them.
Leonard received no response and on September 11 sent
the following letter to the Federal Mediation and Conciliation
Service:
I have enclosed a request for a panel of arbitrators for
use in three disputes between the parties.
Although the company’s position is that these disputes
are not arbitrable, they do agree that the union may re-
quest a panel from the FMCS.
It is not clear at this time whether the company will
participate in the procedure. What is clear is the union
is requesting a panel and intends to proceed accord-
ingly.
It is our intention to arbitrate all three issues with one
arbitrator, that is the reason we are requesting only one
panel.
If you have any questions, please call me at (412) 921–
9100.
After receiving a panel from the Mediation Service, on
October 1, 1990, Leonard wrote Monaco as follows:
In a communication dated September 20, 1990, you re-
ceived a list of arbitrators from the Federal Mediation
and Conciliation Service.
In accordance with Article V of the Collective Bar-
gaining Agreement between the United Steelworkers of
America and 3-State Contractors the parties shall select
an arbitrator from the panel submitted.
Please inform me at the earliest possible date when we
may meet to choose an arbitrator.
Leonard received no response to his October 1 letter. At
an unemployment compensation hearing on January 3, 1991,
Leonard asked Monaco and Respondent’s attorney when Re-
spondent was going to respond to the list of arbitrators and
what they were going to do about it. He received no answer.
Leonard filed the charge in this case a month later.
On April 1, 1991, Leonard sent a letter to Monaco appeal-
ing a grievance pertaining to mileage to arbitration. On the
same day he sent an identical letter pertaining to the over-
time grievance. Leonard testified that the letter pertaining to
the mileage grievance was filed when he discovered that
there had been no prior request to arbitrate that grievance
and that he did not know why he also sent a letter pertaining
to the overtime grievance at the same time. Respondent did
not reply to either letter.
B. Concluding Findings
1. The issues
The complaint alleges that since on or about October 1,
1990, Respondent has failed and refused to process the over-
time and Flaherty grievances, has thereby repudiated article
V of the collective-bargaining agreement, and has failed and
refused to comply with all the terms of the agreement in vio-
lation of Section 8(a)(1) and (5) and (d) of the Act.
The contentions and briefs of the parties raise several
issues.
1. Did Respondent have a contractual obligation to arbi-
trate the overtime and Flaherty grievances?
2. Did Respondent have a contractual obligation to partici-
pate in the selection of an arbitrator?
3. Did the Union fail to comply with procedural require-
ments of the grievance procedure, and if so, did its failure
relieve Respondent of any obligation to arbitrate the griev-
ances?
4. Did Respondent fail or refuse to arbitrate the overtime
and Flaherty grievances and thereby unilaterally change the
terms of the collective-bargaining agreement?
5. If so, was Respondent’s failure or refusal to arbitrate
within the 10(b) period?
714 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The American Heritage Dictionary of the English Language, New
College Edition, Houghton Mifflin Company (1976) p. 1189.
2. Respondent’s contractual obligation to arbitrate
The grievance procedure set forth in the collective-bar-
gaining agreement by its terms applies to disagreements ‘‘as
to the meaning and application of or compliance with’’ the
provisions of the agreement. Any timely appeal of a suspen-
sion or discharge also may be processed as a grievance under
the grievance procedure. Thus, unless relieved from its obli-
gation by the factors relied on by Respondent, Respondent
was obligated by the collective-bargaining agreement to arbi-
trate the overtime and Flaherty grievances.
3. Respondent’s obligation to join in selecting
an arbitrator
Counsel for the General Counsel contends that after the
Federal Mediation and Conciliation Service (FMCS) sent a
list of arbitrators to the parties, Respondent was obligated in
response to Leonard’s October 1 letter to meet with the
Union to select an arbitrator. Respondent contends that it had
no obligation to participate in the selection of an arbitrator
and that the Union could have selected an arbitrator from the
FMCS list without Respondent’s participation and could have
proceeded to binding arbitration before an arbitrator unilater-
ally selected by the Union. Respondent relies on the provi-
sions of the agreement, statements made in Leonard’s letter
to the FMCS, and the testimony of Nippert and Leonard as
to their understandings of the agreement. I find that none of
these support Respondent’s position.
Article V, section 2, step 3 of the agreement provides:
If the grievance is not settled in Step 2, it may be ap-
pealed by either party to an Impartial Arbitrator to be
appointed by mutual agreement by the parties hereto
within ten (10) days following receipt by either party
of a written request for such appointment. If the parties
cannot agree upon an appointment of an Impartial Arbi-
trator within the said period, he shall be selected by the
parties from a panel of five (5) submitted by the Direc-
tor of Federal Mediation and Conciliation Service. The
decision of the Arbitrator shall be final. An Arbitrator
to whom any grievance shall be submitted shall be au-
thorized only to interpret and apply the provisions of
the Agreement insofar as shall be necessary to the de-
termining of such grievance, but he shall not have au-
thority to alter in any way the provisions of this Agree-
ment. The expenses and salaries incident to the service
of the Arbitrator shall be shared equally by the Com-
pany and the Union.
It is agreed by the parties hereto that procedure pro-
vided in the Article, if followed in good faith by both
parties, is adequate for fair and expeditions settlement
of any grievance. Both parties mutually agree that
grievances to be considered must be filed promptly
after the occurrence thereof. Grievances not appealed as
set forth above shall be considered settled on the basis
of the decision last made and shall not be eligible for
further discussion of appeal.
The agreement provides that the arbitrator ‘‘shall be se-
lected by the parties’’ from the FMCS panel. The agreement
contains no procedure to be followed in making that selec-
tion and no method for resolving any deadlock if the parties
are unable to agree on a selection. However, nothing in the
agreement confers on either party the right to make a unilat-
eral selection binding on the other party. While Respondent
suggests the contrary, the use of the word ‘‘shall’’ in the sec-
ond sentence of step 3 of the grievance procedure is com-
monly understood as requiring action by the named actors,
i.e., both parties.8
Leonard’s letter to the FMCS discloses no contrary under-
standing. In stating that the Company had agreed that the
Union might request a panel, Leonard did not indicate any
understanding that Respondent would not object to a unilat-
eral selection of an arbitrator from the FMCS list, and noth-
ing in the remainder of the letter supports an inference that
he had such an understanding. Leonard’s testimony also sup-
ports no such inference.
While Nippert testified that he understood that the agree-
ment permitted one party alone to select an arbitrator whose
award would be binding on both parties, his testimony was
not unqualified. Significantly, he added that the agreement
would be satisfied if one party made the selection and the
other did not object. Thus, even Nippert understood the
agreement to require the acquiescence of the other party.
Nothing in the record would support a finding that Respond-
ent’s silence in response to Leonard’s letters amounted to ac-
quiescence. If Respondent’s intent was to acquiesce, it was
incumbent on Respondent to state its acquiescence affirma-
tively.
I find that Respondent was obliged to participate in select-
ing an arbitrator from the FMCS list and that its contention
to the contrary is an afterthought, raised for the first time at
the hearing in this case.
4. The Union’s compliance with procedural
requirements
Respondent contends that in processing each of the griev-
ances the Union failed to comply with requirements of the
grievance procedure and that Respondent was therefore not
required to arbitrate either grievance.
In the case of the Flaherty grievance, Respondent contends
that even if Flaherty was discharged and did not quit, the
discharge occurred on Thursday, June 21, and nothing pre-
vented him from filing his grievance within 48 hours from
the time of the discharge. Therefore, Respondent contends
that his grievance was untimely under the 48-hour rule set
forth in the contract. While these contentions raise valid
issues of fact and contract interpretation, they are issues for
the arbitrator and they do not relieve Respondent of the obli-
gation to arbitrate. John Wiley & Sons v. Livingstone, 376
U.S. 543 (1964); Teamsters Local 765 v. Stroemann Bros.,
625 F.2d 1092 (3d Cir. 1980).
With respect to the overtime grievance, Respondent con-
tends that Leonard’s May 21 letter was a notice of appeal
to step 2 of the grievance procedure which was not sent
within 10 days after the step one disposition of the griev-
ance, that it was not sent to Respondent’s offices at Cecil,
Pennsylvania, and that the appeal to arbitration was not per-
fected until 11 months after the appeal to the second step of
the grievance procedure and after the charge was filed. The
facts do not support two of these contentions and the third
7153 STATE CONTRACTORS
9 At the hearing Respondent advanced as an additional reason for
not arbitrating the overtime grievance that it was moot because the
overtime had been paid. While Steward Dennis Ford conceded that
overtime rates had been paid for all time worked in excess of 40
hours during the week in question, the grievance complained that
Respondent had not paid the employees at overtime rates for time
worked in excess of 8 hours on each day of that week. Ford’s recol-
lection at the time of the hearing was concededly weak as to what
he had been paid. But there is no concession in his testimony nor
was any evidence offered by Respondent to show that the employees
had been paid for all daily overtime as sought in the grievance.
involves no breach of a procedural requirement. The May 21
letter was an appeal to step 3 of the grievance procedure and
not to step 2, as is clear from its face. Leonard sent the letter
to Nippert’s home address where he had sent other cor-
respondence. Nothing in the agreement requires that notices
be served only at the Company’s office address, and there
is no evidence that Respondent ever objected to use of
Nippert’s home address. Finally, the redundant appeal to ar-
bitration sent on April 1, 1990, does not render defective the
original notice of appeal sent on May 21, 1990, less than a
month after the appeal to the second step. These objections
fail even to raise issues for the arbitrator and must be re-
jected as afterthoughts and makeweights in the attempt to
justify Respondent’s position.
5. The alleged unilateral change
In GAF Corp., 265 NLRB 1361, 1364–1365 (1982), the
Board stated:
[W]here there is a collective-bargaining agreement con-
taining a grievance/arbitration clause, an employer’s re-
fusal to take all, or even most, grievances to arbitration
constitutes an 8(a)(5) violation. Paramount Potato Chip
Company, Inc., 252 NLRB 794 (1980); Independent
Stave Company, Diversified Industries Division, 233
NLRB 1202 (1977); Airport Limousine Service, Inc.,
and Jay McNeill, Esq. as Receiver for Airport Lim-
ousine Service, Inc., 231 NLRB 932 (1977). However,
a refusal to arbitrate one type of grievance is not nec-
essarily an unfair labor practice. Where an employer re-
fuses to arbitrate a very narrow, specifically defined
grievance subject matter, the Board has not found a
violation of the Act. Whiting Roll Up Door Mfg. Corp.,
257 NLRB 734 (1981); Central Illinois Public Service
Company, 139 NLRB 1407 (1962); Airport Limousine,
supra, at 934.
In deciding whether refusals to arbitrate violate the Act,
the ultimate question is whether the employer by its conduct
has unilaterally modified contractual terms or conditions of
employment during the effective period of the contract.
Southwestern Electric, 274 NLRB 922, 926 (1985).
The overtime and Flaherty grievances were not of the
same kind or class, and the evidence provides no basis for
concluding that Respondent’s refusal to arbitrate was nar-
rowly grounded. Only two common reasons have been ad-
vanced for not arbitrating the two grievances. One, that the
Union failed to adhere to contractual grievances procedures,
as found above does not apply to the overtime grievance and
was clearly an afterthought.9 The other appears in Nippert’s
testimony that Respondent had no need to go to arbitration
because it had complied with the contract and that in a future
situation if the facts established in his mind that they had
complied with the contract there would be no need to go to
arbitration. This testimony echoes Monaco’s statements at his
August 7 meeting with Leonard and Flaherty. Together they
support the inference that Respondent failed to participate in
the selection of an arbitrator after receiving the Union’s Oc-
tober 1 letter because it arrogated to itself the determination
as to which grievances should be arbitrated, contrary to the
terms of the grievance procedure. I find that Respondent’s
failure to respond to the Union’s requests to participate in the
selection of an arbitrator was deliberate, was in effect a re-
fusal to arbitrate the grievances, and unilaterally changed the
terms of the collective-bargaining agreement by imposing a
noncontractual condition that Respondent would arbitrate
only those grievances that it decided should go to arbitration.
6. The 10(b) issue
The final issue to be considered is whether the violation
occurred during the 6-month period preceding the filing and
service of the charge or occurred before that time and there-
fore is barred by Section 10(b) of the Act. Respondent con-
tends that the complaint is barred by Section 10(b) because
the violation if any must depend on the statements attributed
to Monaco at the August 7 meeting with Leonard and
Flaherty.
Both Leonard and Flaherty testified that at that meeting
Monaco stated that he would not arbitrate Flaherty’s griev-
ance and that it was his right to deny arbitration. Monaco
was not called as a witness. Flaherty portrayed the discussion
of arbitration as tied to his grievance. Leonard portrayed
Monaco’s statements more broadly, testifying that he said
that he was the one who would decide whether grievances
had merit and whether they would go to arbitration. Neither
indicated in their testimony that at this meeting there was
any discussion of the overtime grievance or of the Union’s
request to arbitrate that grievance.
As of August 7 the Union had not yet appealed the
Flaherty grievance to arbitration, and it had not yet requested
a list of arbitrators from the FMCS with respect to the over-
time grievance, the next step provided on failure to mutually
agree on an arbitrator as requested in the May 21 letter.
In order to find that the violation had occurred by August
7 it is necessary to find that by that date Respondent had re-
fused to go to arbitration, not only over a single grievance
or a narrow class, but over all grievances which Monaco did
not think should be arbitrated, and had clearly and unequivo-
cally repudiated the arbitration provisions of the contract.
GAF Corp., supra; A & L Underground, 302 NLRB 467
(1991).
I find that Monaco’s August 7 statement considered in
conjunction with the other communications up to that date
was not sufficient to meet that test. Monaco’s July 24 reply
to union counsel’s letter states that he did not want to arbi-
trate the overtime grievance, but not that he would refuse to
do so. In that letter Monaco expressed interest in discussing
it further and stated that he was somewhat confused as to
whether the Union was then seeking arbitration or settlement
of that grievance. Monaco’s statements at the August 7 meet-
ing were made in the context of discussion of the Flaherty
grievance for which arbitration had not yet been requested.
At most at that meeting Monaco indicated that he would not
716 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
11 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
National 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.’’
agree to arbitrate the Flaherty grievance for three reasons, at
least one of which was narrow and pertained only to that
grievance—that Flaherty had quit. Given the context of the
discussion, the absence of any request to arbitrate the
Flaherty grievance at that point, and the mixed grounds given
for refusing to arbitrate it, I find that there was at that point
no clear and unequivocal general refusal to arbitrate griev-
ances that Monaco decided should not be arbitrated.
Following the August 7 meeting, Leonard requested arbi-
tration of the Flaherty grievance, and on September 11 wrote
to request a panel of arbitrators from the FMCS. After re-
ceiving the list, on October 1 Leonard wrote Monaco to seek
a date for a meeting to select an arbitrator from the list. Re-
spondent did not respond to that letter. As Respondent had
a duty to participate in the selection of an arbitrator, it had
a duty to respond to the letter and meet with the Union to
select an arbitrator. At that point it became clear that Re-
spondent would not arbitrate either grievance and was repu-
diating its agreement to arbitrate. Since the charge was
served on February 11, 1991, the violation occurred within
the 10(b) period. While the August 7 meeting occurred out-
side the 10(b) period, statements made by Monaco at the
time may be relied on ‘‘to shed light on the true character
of matters occurring within the limitations period.’’ Machin-
ists Local Lodge 1424 v. NLRB, 362 U.S. 411, 416 (1960).
Here the statements are not relied on to establish the viola-
tion but only to shed light on the reasons for Respondent’s
failure to participate in the selection of an arbitrator in Octo-
ber.
CONCLUSIONS OF LAW
1. At all times material the Union has been the exclusive
collective-bargaining representative of Respondent’s employ-
ees in the appropriate unit described below for the purposes
of collective bargaining within the meaning of Section 9(a)
and (b) of the Act.
2. All production and maintenance employees, excluding
supervisors, office and clerical employees, draftsmen, tech-
nical employees, and guards, employed by Respondent con-
stitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
3. By unilaterally repudiating and modifying the arbitration
provisions of its collective-bargaining agreement with the
Union, the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(5)
and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative 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 recommended10
ORDER
The Respondent, 3 State Contractors, Inc., Cecil, Pennsyl-
vania, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with United Steelworkers of
America and its Local 14034 as the exclusive representative
of the employees in the appropriate bargaining unit by unilat-
erally repudiating and/or modifying the terms and conditions
of the collective-bargaining agreement with the above-named
Union with respect to the arbitration of disputes.
(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 action necessary to effectuate the
policies of the Act.
(a) On request, promptly participate in the selection of an
arbitrator for the grievances filed with respect to overtime
work dated April 20, 1990, and with respect to the termi-
nation of James Flaherty dated June 25, 1990, and proceed
to their arbitration in accord with article V of the collective-
bargaining agreement between Respondent and the Union.
(b) Post at its facility in Cecil, Pennsylvania, copies of
the attached notice marked ‘‘Appendix.’’11 Copies of the no-
tice, on forms provided by the Regional Director for Region
6, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable 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 Respondent
has taken to comply.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to bargain with United Steelworkers
of America and its Local 14034 as the exclusive representa-
tive of our production and maintenance employees by unilat-
erally repudiating and/or modifying the terms and conditions
of the collective-bargaining agreement with the above-named
Union with respect to the arbitration of disputes.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
7173 STATE CONTRACTORS
WE WILL, on request, promptly participate in the selection
of an arbitrator for the grievances filed with respect to over-
time work dated April 20, 1990, and with respect to the ter-
mination of James Flaherty dated June 25, 1990, and proceed
to their arbitration in accord with article V of our collective-
bargaining agreement with the Union.
3 STATE CONTRACTORS, INC.