American National Can Co.

National Labor Relations Board - Board Decisions

Apr 28, 1989

293 N.L.R.B. 901 (N.L.R.B. 1989)

AMERICAN NATIONAL CAN CO 901
American National Can Company , Foster-Forbes
Glass Division and Local 193 , Glass, Pottery,
Plastics and Allied Workers' Union, AFL-CIO,
and Glass , Molders , Pottery, Plastics & Allied
Workers' International Union AFL-CIO,
CLC 1 Case 11-CA-12545
April 28, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On May 20, 1988, Administrative Law Judge
Hutton S Brandon issued the attached decision
The General Counsel and Charging Parties Local
193 and Glass and Pottery Workers' International
(the Unions) each filed exceptions and supporting
briefs The Respondent filed an answering brief,
cross exceptions, and a supporting brief
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, and
conclusions only to the extent consistent with this
Decision and Order
The unfair labor practice issue is whether the
Respondent unlawfully refused the Unions' re-
quests for access to the plant to measure the heat
levels there A threshold issue is whether the dis-
pute between the parties over the Respondent's re-
fusal to grant the Unions that access should be de-
ferred to the grievance-arbitration procedures con
tamed in the parties' collective-bargaining agree-
ment Contrary to the judge, we conclude that the
dispute is not appropriate for deferral and that the
Respondent violated Section 8(a)(5) and (1) of the
Act by refusing the Unions' requests for access to
the plant to measure heat levels
I FACTS
The Respondent manufactures glass containers
The Unions represent a unit of the Respondent's
production and maintenance employees at, inter
alia, its Wilson, North Carolina plant The Re-
spondent and the Unions (the International "on
behalf of itself as the International Union as agent
for and on behalf of [inter alia] Local Union No
193 covered by the Contract") have a collective-
bargaining agreement covering the above unit, ef-
fective for the period April 1, 1987-March 31,
1990 This contract provides, in pertinent part
Article 3
Union Rights
Section 3 The accredited International Rep
resentative of the Union shall, after first advis-
ing plant management of such visit and its pur-
pose, be granted the right to visit the plants in
matters pertaining to complaints and/or griev-
ances arising out of questions concerning the
application or interpretation of this Contract 2
The Local Union President or his designee
shall be granted the right to visit the plant in
which he is employed, after requesting such
permission from the local plant management,
to investigate matters pertaining to complaints
and/or grievances arising out of questions con-
cerning the application or interpretation of this
Contract
Article 18
Relief
Section 1 All hourly employees are entitled
to, and shall receive , relief time as follows
(e) Additional relief shall be provided where
heat or cold conditions warrant
Article 29
On-Job Health Protection
The Company will provide adequate heat,
light, and ventilation to employees, and will
continue its best effort to devise systems to
control drafts noise fumes dust grease, and
job hazards which employees may be subject
to at their place of work
The contract also contains a four-step grievance
procedure followed by a procedure for final and
binding arbitration
The manufacture of glass containers at the in-
stant plant is conducted under conditions of ex-
treme heat and noise According to Phil Sternfeld,
who was the Local 193 president and a 10 year
employee, several employees had suffered heat ex-
haustion in the plant Grievances seeking heat relief
had been filed in 1979 or 1980 and in the summer
of 1985 The record does not show how these
grievances were resolved A labor-management
' Effective May 1 1988 the Glass Pottery Plastics & Allied Workers
International Union AFL-CIO merged with the International Molders
and Allied Workers Union AFL-CIO to form the Glass Molders Pot
tery Plastics & Allied Workers International Union AFL-CIO CLC
2 In setting out this section of the contract the judge erroneously in
serted the phrase and/or Local Union officers following the word
Representative
293 NLRB No 110
902 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
meeting was convened on May 20, 1987,3 to dis-
cuss, inter alia, assertedly excessive heat conditions
in the plant and the application of the contractual
heat relief provisions
On May 23 (not May 27, as set forth initially in
the judge's decision), Sternfeld wrote to Plant
Manager King Ghegan requesting that representa-
tives of Local 193 be permitted to monitor tem
peratures in the plant for the purpose of determin-
ing if the Respondent was in compliance with, inter
alia, the contractual provisions on heat relief and
on the job health protection The letter advised
that the Local intended to use a "wet bulb ther-
mometer4 for this monitoring in various areas of
the plant at different days and times " The letter
expressed the Local's view that it was entitled to
such access under the contract and under the Na-
tional Labor Relations Act Finally, the letter re-
quested the Respondent to advise the Local, inter
alia, what method the Respondent intended to use
to determine when heat-relief time was warranted,
and the frequency and duration of that relief time
On June 3, Sternfeld asked Director of Industrial
Relations Clayton "If we could come in and mom
tor temperatures That we felt that the heat stress
situation was in place and that we wanted to come
in and monitor temperatures " Clayton denied
Sternfeld's request
On June 8, Ghegan replied in writing to the
Local's May 23 letter Ghegan's letter stated, in
regard to the heat relief provisions of the contract
It will certainly be our commitment and in
tention to live up to this language recognizing
that relief for heat is an individual consider-
ation based upon a number of circumstances
involving the person, work area, work activi-
ty, time of day and the environment
It is our responsibility to make the determi
nation for heat and cold relief and we will be
sensitive to conditions in making that decision
It will not be necessary for Union representa-
tives to be involved in a monitoring program
and [we] believe an equitable and fair relief
program will be administered
On July 2, Sternfeld and International Union
Representative Joseph Pitts met with Ghegan and
Clayton The former two each asked if he could be
allowed into the plant to monitor temperatures
Ghegan denied these requests Pitts asked if either
3 All dates are 1987 unless otherwise shown
4 Not a wet bulb globe thermometer as stated by the judge in de
scribing this May 23 letter However the instrument in question is subse
quently referred to in the record as a wet bulb globe thermometer and
is described by the judge in fns 5 and 6 and related text in his attached
decision
the International Union's health and safety special-
ist or a mutually acceptable industrial hygienist
could be allowed into the plant to monitor tem-
peratures Ghegan denied these requests also 5
On September 24, Sternfeld, on behalf of Local
193 as grievant, filed a grievance alleging that the
Respondent was in violation of article 18, section
1(e) of the contract (i e , heat relief), "in that [the
Respondent is] not providing employees heat relief
in accordance with the contract " The grievance
sought to have heat relief provided "in accordance
with the contract as heat conditions warrant "
The grievance was denied at step 2 of the gnev
ance procedure on October 8, with the Respondent
stating that "the company has provided heat relief
and fulfilled the requirements" of article 18, section
1(e) of the contract The grievance was carried to
step 3 On November 13, it was again denied, on
the asserted grounds that the Respondent was in
compliance with the contract The Unions have not
pursued the grievance beyond step 3 of the griev
ance procedure
On November 18, Local 193 filed the instant
unfair labor practice charge (subsequently amended
to include the International, as a Charging Party),
and on January 29, 1988, the General Counsel
issued the instant complaint, alleging that the Re
spondent has violated Section 8(a)(5) and (1) of the
Act by failing and refusing to allow the Unions
reasonable access to the plant, as requested, for the
purpose of gathering information, otherwise un
available to the Unions, concerning health and
safety conditions inside the plant
At the March 15, 1988 hearing in this case, the
Respondent formally offered, on the record, to go
directly to arbitration (i e , without the need for
further processing through the grievance proce
dure) on the following questions
(1) Whether the Respondent has complied
with Article 18, section 1(e) of the collective
bargaining agreement (i e, additional heat
relief),
(2) In conjunction with the Unions'conten-
tions that the Respondent has not complied
with Article 18, section 1(e) of the contract,
whether the Respondent has complied with
Article 3, section 3 (i e , Union access to the
plant),
6 At the hearing Pitts was asked whether he had been denied permis
sion to monitor for heat stress or whether he had been denied permission
to take heat measurements with a wet bulb globe thermometer Pitts tests
feed that he probably was told that the Unions would not be allowed to
use the wet bulb globe thermometer but that in conversation we were
using it interchangeably and that when he mentioned monitoring for
heat stress in conversation with the Respondent he meant taking mess
urements with a wet bulb globe thermometer and vice versa
AMERICAN NATIONAL CAN CO 903
(3) If the Respondent has failed to comply
with the additional heat-relief provisions
and/or the Union access provisions of the con-
tract (in conjunction with the Unions' conten-
tions that the Respondent has not complied
with the additional heat-relief provisions), then
what remedies should be granted to the
Unions
II ANALYSIS AND CONCLUSIONS
A Deferral
The administrative law judge determined that
the instant question of whether the Respondent un-
lawfully refused the Unions' request for access to
the plant to measure heat levels should be deferred
to the grievance-arbitration procedures contained
in the parties' collective-bargaining agreement In
making this determination, the judge particularly
relied on (1) the existence of provisions in the col-
lective-bargaining agreement dealing with the
Unions' access to the plant, coupled with (2) the
willingness of the Respondent to go directly to ar-
bitration over the denial-of-union-access allegation,
in the context of and in conjunction with the im-
mediate arbitration of the heat relief grievance
Thus, he found that "[W]hile the Unions' right to
access to Respondent's premises is predicated on
the statutory right of employees to be represented
by a labor organization of their choice, it is paral-
leled in this case in the collective bargaining agree-
ment itself " The judge also found that deferral of
the denial-of-access allegation under the instant cir-
cumstances (i e, to be arbitrated in conjunction
with heat-relief grievance) would not result in a
two-stage proceeding, generally disfavored by the
Board, in which the Unions' claim for access to the
plant would first have to be resolved separately in
order to provide the Unions, if successful in their
access claim, the opportunity to then actually go
into the plant to obtain the heat measurement data
it needs in order to go forward, in a separate subse-
quent proceeding, with its heat relief grievance
Contrary to the judge, we find that deferral of
the instant denial-of access allegation to the griev-
ance arbitration procedure is not appropriate More
specifically, we disagree with his assessment that
deferral under the instant circumstances will not
result in a two-stage proceeding involving, in prac
tical effect, two separate arbitral proceedings
The Board, as the judge acknowledged, has gen-
erally refused to defer issues that would result in a
two-tiered system requiring a union to file a griev-
ance to obtain information potentially relevant to
its processing of a second, underlying grievance
The rationale for this position is articulated in Gen-
eral Dynamics Corp, 268 NLRB 1432 fn 2 (1984),
in which the Board found that the employer had
unlawfully refused to provide the union with cer-
tain information (a technological study) requested
by the union for the purpose of determining wheth
er to proceed with possible grievances over the
employer's subcontracting of certain work In re-
fusing to defer the information issue, the Board
found
[T]he procedural issue of disclosure of the
study is merely preliminary to the resolution
of the parties' substantive dispute over the sub
contracting In these circumstances, we find
no merit in encumbering the process of resolv-
ing the pending subcontracting grievances
with the inevitable delays attendant to the
filing, processing, and submission to arbitration
of a new grievance regarding the information
request Such a two-tiered arbitration process
would not be consistent with our national
policy favoring the voluntary and expeditious
resolution of disputes through arbitration Nor
would it be consistent with prior Board deci-
sions in this area See, e g, Safeway Stores, 236
NLRB 1126 fn 1 (1978), St Joseph's Hospital,
233 NLRB 1116 fn 1 (1977) 6
Contrary to the judge, we find that deferral in
the instant case would create a risk of the type of
two-tiered dispute resolution process disfavored by
the Board Notwithstanding the Respondent's ex-
pressed willingness to arbitrate the denial of-access
allegation "in conjunction" with the heat-relief
grievance, it is quite clear that in order to proceed
to arbitration on its heat-relief grievance, Local 193
will separately and preliminarily have to find out
the actual heat conditions in the plant Under the
circumstances, the Unions can obtain this informa-
tion only through access to the plant Thus, under
the Respondent's proposal, agreed to by the judge,
the parties would necessarily first have to arbitrate
separately the denial-of access dispute, in order to
determine whether the Unions would be permitted
access to the plant to take heat measurements As
was the case in General Dynamics, supra, the reso-
lution of this preliminary dispute over access to the
plant to obtain heat data, even if resolved in favor
of the Unions, does not simultaneously resolve the
underlying heat-relief grievance, on which the re
quest for access is predicated 7
6 Accord General Dynamics Corp 270 NLRB 829 (1984) See Stephen
Odenwald Inc 284 NLRB 277 (1987) Teamsters Local 851 (Northern
Air) 283 NLRB 922 (employer request for information) (1987) Clinch
field Coal Co 275 NLRB 1384 1385 fn 4 (1985) United Technologies
Corp 274 NLRB 504 505 (1985) See also TRW Inc 202 NLRB 729
731 (1973)
' Although it is possible that obtaining the desired heat data could lead
the Unions to decide not to proceed with the underlying heat relief
Continued
904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In light of the above, we find no support for the
judge's determination that deferral of the denial-of-
access allegation "would appear to create no risk
of a two-tiered dispute resolution system " Clearly,
deferral would result in just such a system, and the
fact that the Respondent here is willing to partici-
pate in such a two-tiered arbitration process makes
it no less an unacceptable impediment to the right
of the Respondent's employees to be effectively
represented by their collective-bargaining repre-
sentatives
Nor do we find that the issue need be treated
differently because it involves a request for access
to obtain information rather than a simple request
for information itself The judge correctly noted
that in Holyoke Water Power Co, 273 NLRB 1369
(1985), enfd 778 F 2d 49 (1st Cir 1985), the Board
rejected the analogy it had effectively drawn in
Winona Industries, 257 NLRB 695 (1981), between
(1) requests for access to an employer's premises to
obtain information and (2) requests for information
itself In rejecting that analogy, however, the
Board in Holyoke was focusing on the nature of the
substantive rights themselves, i e , distinguishing
relevant information (to which a union has virtual
ly automatic entitlement) from access to the em-
ployer's premises to obtain relevant information
(entitlement to which is less than automatic be-
cause of the property interests involved) 8 The
issue in the present case-whether it is appropriate
to defer to arbitration a matter involving entitle
ment to information when another dispute between
the parties may be dependent on that information-
is an ancillary procedural issue The distinctions
made in Holyoke have no relevance to this issue
We find that the principles applied by the Board in
refusing to defer requests-for-information cases to
contractual grievance-arbitration provisions are
equally applicable to the question whether
to defer requests-for-access-to-obtain-information
grievance it is also possible that obtaining the data would lead them to
further pursue the grievance which would result in the two tiered dis
puce resolution system disfavored by the Board
To the extent that the Respondent objected to the exclusion of evi
Bence that it contended would show that the heat measurements the
Unions proposed to take would not establish the existence of any con
tract violation we note that the issue here is not whether the instant
heat relief grievance or any other grievances the Unions may file on the
basis of the results of their measurements will ultimately be found to
have merit but merely whether the information sought to be obtained
through such measurements is reasonably relevant to and necessary for
the Unions consideration whether to file such grievance
9 As will be discussed in the following section of this decision the
Board in Holyoke determined that rather than automatic access to obtain
relevant information a unions right to access would be determined
through a case by-case balancing of the employers property rights and
the employees right to be effectively represented by its collective bar
gaining representative
cases Consequently, we find the instant allegation
to be unsuitable for deferral 9
B Access to the Plant
With respect to the merits of the complaint alle-
gation, the central issues are whether the Unions
are entitled to the heat information and, if so,
whether they are entitled to access to the Respond-
ent's plant in order to obtain the data We find that
in both instances the Unions are so entitled
It is well settled that an employer has a duty to
supply requested information to a union that is the
collective bargaining representative of the employ-
er's employees if the requested information is rele
vant and reasonably necessary to the union's per
formance of its responsibilities NLRB v Acme In-
dustrial Co, 385 US 432 (1967), NLRB v Truitt
Mfg Co, 351 U S 149 (1956), see also Central Soya
Co, 288 NLRB 1402 (1988) Disclosure by an em-
ployer of requested information "necessary to
enable [a union] to evaluate intelligently grievances
filed" or contemplated, allows a union to "sift out
meritorious claims" and facilitates the arbitral proc-
ess NLRB v Acme Industrial Co, supra at 435,
437-438 The standard for determining the relevan-
cy of requested information is a liberal one and it is
necessary only to establish `the probability that the
desired information is relevant, and that it would
be of use to the union in carrying out its statutory
duties and responsibilities " NLRB v Acme Indus-
trial, supra at 437 See also Leland Stanford Junior
University, 262 NLRB 136, 139 (1982), and cases
cited there
Applying these principles to the instant facts, we
find that the Unions are entitled to the heat meas-
urement data in question Excessive heat in the
workplace is potentially hazardous to the health
and safety of employees The health and safety of
employees are terms and conditions of employ-
ment , and thus mandatory subjects of bargaining
about which an employer is obligated to bargain
with the collective bargaining representative of its
employees 10 Therefore, acquiring the heat meas-
urement information in question is clearly relevant
to and necessary for the Unions' proper perform
ance of (1) their general collective-bargaining re
9 The judges reliance on Transport Service Co 282 NLRB 111 (1986)
as support for his deferral of the instant allegation is clearly misplaced
and appears to have been based on a misreading of that case Thus as the
General Counsel asserts in her supporting brief contrary to the judge s
analysis of Transport Service the Board did not defer the alleged denial of
information in that case Indeed the Board specifically ordered the em
ployer promptly to furnish the union with all relevant information the
union deemed necessary to properly process grievances encompassing the
unfair labor practice issues that the Board did defer Id at I l l fn 3 and
119-120
10 See e g Minnesota Mining & Mfg 261 NLRB 27 29 (1982)
AMERICAN NATIONAL CAN CO 905
sponsibilities, and also (2) their particular represen
tational responsibilities in question here, i e , (a) to
evaluate and (if warranted) pursue intelligently the
Local's grievance alleging that the Respondent has
not complied with the heat-relief provisions of arti-
cle 18, section 1(e) of the collective-bargaining
agreement, requiring additional heat relief as "con-
ditions warrant," and (b) to assess whether the Re
spondent is complying with the on-the-job health
protection provisions of article 29 of the collective-
bargaining agreement, requiring, inter alia, ade-
quate ventilation, and promising control of job haz-
ards in the plant
Having found that the Unions are entitled to
obtain the heat-measurement data in question, we
further find that the Unions are entitled to access
to the Respondent's plant in order to obtain this
heat measurement information under the principles
set forth in Holyoke Water Power Co, supra
In Holyoke, the employer denied the union's re
quest that its industrial hygienist be permitted
access to the employer's plant to survey for poten
tial health and safety hazards associated with noise
levels In finding that the employer had violated
Section 8(a)(1) and (5) of the Act in denying the
union access to conduct its test, the Board deter-
mined that a union is not automatically entitled to
access to an employer's premises to obtain informa-
tion simply because the information has been
shown (as in the instant case) to be relevant to the
union's proper performance of its representational
duties Rather, the Board noted the necessity of ac-
commodating conflicting rights of the parties (i e ,
the right of employees to be responsibly represent-
ed by a labor organization versus the right of the
employer to control its property and ensure that its
operations are not interfered with) In attempting
to achieve accommodation of these rights, the
Board announced the following test in Holyoke, id
at 1370
Where it is found that responsible representa-
tion of employees can be achieved only by the
union's having access to the employer's prem-
ises , the employer's property rights must yield
to the extent necessary to achieve this end
However, the access ordered must be limited
to reasonable periods so that the union can ful-
fill its representation duties without unwarrant-
ed interruption of the employer's operations
On the other hand, where it is found that a
union can effectively represent employees
through some alternate means other than by
entering on the employer's premises, the em-
ployer's property rights will predominate, and
the union may properly be denied access
Under this test, the Board in Holyoke concluded
that the employees' right to responsible representa-
tion entailed the union's obtaining accurate noise
level readings to ascertain the extent of employee
hazard and to suggest means to protect them from
any such hazard The Board found that this em-
ployee right outweighed the employer's property
rights in that case The Board thus ordered the em-
ployer to grant the union's hygienist access "for a
reasonable period sufficient to allow the union by
gienist to fully observe and survey noise level haz-
ards "
Applying the principles of Holyoke to the instant
case, we find that responsible representation of the
employees by the Unions in ascertaining whether
the Respondent is complying with the heat-relief
and on-the-job health protection provisions of the
collective bargaining agreement can be achieved
under the circumstances only by the Unions'
having access to the Respondent's plant to measure
heat levels As seen, the Unions are entitled to
obtain this heat information as a relevant and nec
essary aspect of their roles as the collective-bar-
gaining representatives of the Respondent's em-
ployees There is nothing in the record to indicate
that the Unions could independently obtain this in-
plant heat data without their representatives' actual
entry into the plant to take heat measurements
Thus, the employees' right to responsible represen-
tation with regard to heat-relief and on-the-job
health protection can apparently be vindicated
under the circumstances only by permitting the
Unions to have access to the Respondent's plant to
take heat measurements
On the other hand, the Respondent's rights to
control its property and to ensure that its oper
ations are not interfered with do not appear to be
significantly threatened by a grant of access to the
Unions to take heat measurements 11 First, the
record does not show, and the Respondent does
not contend, that granting the Unions access to the
plant to take heat measurements with a wet bulb
globe thermometer (or similar measuring instru-
ment) would necessarily undermine the Respond
ent's control of the plant or significantly interfere
with the plant's operations Second, the Respond-
ent has already contractually agreed to grant repre-
i i Indeed the Respondent has not raised the spectre of such interfer
ence in attempting to justify its refusal to grant the Unions access to the
plant to take heat measurements Rather the Respondent has predicated
its denials of access on its assertions that (1) it is permitted (but infer
entially not required) to provide additional heat relief when conditions
warrant (2) it alone has the responsibility exclusive right and ex
elusive contractual authority to determine when heat relief is warranted
(3) it will be sensitive to conditions in determining whether to provide
heat relief and (4) the Unions participation in a program to monitor heat
is unnecessary
906 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sentatives of the Unions access to the plant "to in-
vestigate matters pertaining to complaints and/or
grievances arising out of questions concerning the
application or interpretation" of the collective bar-
gaining agreement-precisely the purpose for
which the Unions seek access to the plant in the in
stant case Thus, the Respondent has already con-
tractually agreed to a limited infringement of its
property rights under circumstances similar to
those at hand Finally, in keeping with the princi-
ples set forth in Holyoke, the access that we shall
order the Respondent to provide to the Unions for
the purpose of taking heat measurements shall be
limited to reasonable periods sufficient to permit
the taking of the measurements without any unnec
essary interruption of plant operations
In light of all the above considerations, we find
that the Respondent's property rights, on balance,
are outweighed in this case by the employees'
rights to be responsibly represented by the Unions
in processing the heat-relief grievance and monitor-
ing the Respondent's compliance with the on-the
job health protection provisions of the collective-
bargaining agreement Thus, we conclude that the
Respondent has unlawfully denied the Unions' re
quests for access to the Respondent's plant to take
heat measurements in pursuit of the above objec
tives 12
CONCLUSIONS OF LAW
1 The Respondent, American National Can
Company, Foster Forbes Glass Division, is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act
2 The Unions, Local 193, Glass, Pottery, Plas
tics and Allied Workers' Union, AFL-CIO, and
Glass, Molders, Pottery, Plastics & Allied Workers'
International Union, AFL-CIO, CLC, are labor or
ganizations within the meaning of Section 2(5) of
the Act
3 At all material times, the Unions have been
the designated and recognized exclusive collective
bargaining representatives of the Respondent's pro-
duction and maintenance employees, as more par
ticularly described in article 1, section 1, of the
April 1, 1987-March 31, 1990 collective-bargaining
agreement between the parties
4 By denying the Unions' requests for access to
the Respondent's plant to take heat measurements,
the Respondent has failed and refused to bargain
with the Unions in good faith, in violation of Sec-
tion 8(a)(5) and (1) of the Act, as alleged
12 See Hercules Inc 281 NLRB 961 (1986) ASARCO Inc 276
NLRB 1367 (1985) National Broadcasting Co 276 NLRB 118 (1985)
5 The above violation of the Act is an unfair
labor practice affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act
REMEDY
Having found that the Respondent has violated
Section 8(a)(5) and (1) of the Act, we shall order it
to cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act We shall order the Respondent to allow the
Unions, on request, access to the Respondent's
Wilson, North Carolina facility for the purpose of
taking heat measurements relevant to and necessary
for the processing of a heat relief grievance and for
monitoring the Respondent's compliance with the
on the ;lob health protection provisions of the par
ties' collective-bargaining agreement Any access
shall be limited to a reasonable period and at rea-
sonable times
ORDER
The National Labor Relations Board orders that
the Respondent, American National Can Company,
Foster-Forbes Glass Division, Wilson, North Caro-
lina, its officers, agents, successors, and assigns,
shall
1 Cease and desist from
(a) Denying the Unions' requests for reasonable
access to the Respondent's plant to take heat meas-
urements that are relevant and necessary for the
Unions' performance of their responsibilities as the
collective bargaining representatives of the Re-
spondent s employees in the bargaining unit de-
scribed in article 1, section 1 of the parties' April 1,
1987-March 31, 1990 collective-bargaining agree-
ment
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act
2 Take the following affirmative action neces
sary to effectuate the policies of the Act
(a) Upon the Unions' request, grant them access
to the Respondent's Wilson, North Carolina plant
for reasonable periods of time at reasonable times,
in order to permit the Unions to take heat measure
ments relevant and necessary for the Unions' proc-
essing of Local 193's heat-relief grievance and for
monitoring the Respondent's compliance with the
on-the-job health protection provisions of the par-
ties' collective-bargaining agreement
(b) Post at its Wilson, North Carolina facility
copies of the attached notice marked "Appen
AMERICAN NATIONAL CAN CO
dix "13 Copies of the notice, on forms provided by
the Regional Director for Region 11, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate
ly 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 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
13 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
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 193, Glass, Pottery, Plastics and Allied
Workers' Union, AFL-CIO, and Glass, Molders,
Pottery, Plastics & Allied Workers' International
Union, AFL-CIO, CLC, by denying their requests
for access to our Wilson, North Carolina plant to
take heat measurements that are relevant and nec-
essary for the Unions' performance of their collec
tine-bargaining and representational responsibilities
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 the request of either Union, grant
them access to our Wilson, North Carolina plant
for reasonable periods of time at reasonable times
in order to permit them to take heat measurements
that are relevant and necessary for the Unions' per-
formance of their collective-bargaining and repre-
sentational responsibilities
AMERICAN NATIONAL CAN COMPA-
NY, FOSTER FORBES GLASS DIVISION
Patricia Timmins Esq for the General Counsel
907
Thomas A Farr and Robert A Valois Esq (Maupin
Taylor Ellis & Adams), of Raleigh North Carolina,
for the Respondent
Susan Pollitt Esq, of Durham, North Carolina, and Carl
S Yaller Esq, Media, Pennsylvania, for the Unions
DECISION
STATEMENT OF THE CASE
HUTTON S BRANDON, Administrative Law Judge
This case was tried at Wilson, North Carolina, on 15
March 1988 The charge was filed by Local 193, Glass,
Pottery, and Allied Workers Union, AFL-CIO (the
Local), on 18 November 1987,1 and amended on 20 Jan
uary 1988 to include as a charging party, Glass, Pottery,
Plastics & Allied Workers International Union, AFL-
CIO, CLC (the International and, together with the
Local, the Unions) The complaint and notice of hearing
based on the charge, as amended issued on 29 January
1988 alleging that American National Can Company
Foster Forbes Glass Division2 (Respondent), violated
Section 8(a)(5) and (1) of the National Labor Relations
Act (the Act) by failing and refusing to allow the
Unions requests for reasonable access to Respondent s
Wilson, North Carolina facility for the purpose of gath
enng information concerning health and safety condi
tions inside Respondents facility Respondent filed a
timely answer to the complaint denying the commission
of any unfair labor practices The issues presented are (a)
whether the Board should defer this matter to arbitration
under the principles of Collyer Insulated Wire, 192 NLRB
837 (1971), and if the matter is not deferred, (b) whether
Respondents refusal to allow the Unions requested
access to its facility for the purpose of monitoring heat
stress conditions using a wet bulb globe thermometer
constituted a refusal to bargain in good faith within the
meaning of Section 8(a)(5) of the Act
On the entire record, including my observation of the
demeanor of the witnesses and after consideration of the
briefs filed by the General Counsel, Respondent 3 and
the Unions I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent is a Delaware corporation with a facility
located at Wilson, North Carolina, where it is engaged in
the manufacture of glass containers During the 12
months preceding issuance of the complaint Respondent
received at its Wilson, North Carolina facility goods and
raw materials valued in excess of $50,000 directly from
points outside the State of North Carolina During the
same period, Respondent shipped from its Wilson, North
Carolina facility products valued in excess of $50,000 di
rectly to points outside the State of North Carolina The
I All dates hereafter are in 1987 unless otherwise indicated
2 The complaint was amended at the hearing to correct the name of
Respondent
3 Respondent filed a list of exceptions to certain of my rulings at the
hearing Treating the exceptions as a motion for reconsideration I have
reconsidered the rulings and adhere to them
908 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
complaint alleges, Respondent in its answer admits and I
find that Respondent is and has been at all times maten
al an employer engaged in commerce within the mean
Ing of Section 2(2) (6), and (7) of the Act The com
plaint also alleges Respondents answer further admits,
and I also find that the Unions, individually and jointly,
are labor organizations within the meaning of Section
2(5) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A Background
The International Union as agent for, and on behalf of,
eight local unions including the Local here, executed a
collective bargaining agreement with Respondent effec
tive 1 April 1987 through 31 March 1990 covering em
ployees in the following described unit
All hourly rated production and maintenance em
ployees including warehousemen, in the plants and
warehouses listed at the end of this contract, except
employees on jobs presently covered by the Auto
matic Machine Department Contract, contracts
with other unions, salaried supervisors employees
excluded by law and by prior contract in effect
with the Company as of March 31, 1974
Eight facility locations including the one in Wilson,
North Carolina, here involved, are listed in Schedule
A of the contract which provides for the wage rates
of various labor grades employed in the various facilities
The International and the respective locals jointly ad
minister the agreement at Respondents various facilities
listed in the agreement Although the International and
several of its locals have represented unit employees for
several years the Unions were recognized by Respond
ent at the Wilson facility after Respondent purchased
that facility about 1983 from the Kerr Glass Manufacur
ing Company The Unions had previously represented
Kerr's production and maintenance employees at Wilson
since about 1978 according to the uncontradicted tests
mony of Phil Sternfield, president of Local 193
The Unions also represented other employees of Re
spondent at the Wilson facility in a separate unit of auto
matic machine department employees This unit is re
ferred to on the record as being employed in the hot
end' of Respondents operation, as distinguished from
the "cool end where the production and maintenance
employees involved here are utilized The record is un
clear whether these references indicate environment tem
perature differences or whether they relate only to the
temperature of the manufacturing process in each unit
Although bargaining agreements covering these separate
units are similar, they are not in all respects the same
Provisions from the production and maintenance or
`cool end bargaining agreement pertinent to this case
are as follows
Article 3
Union Rights
Section 3 The accredited International Represent
ative and/or Local Union Officers of the Union
shall, after first advising plant management of such
visit and its purpose, be granted the right to visit
the plants in matters pertaining to complaints
and/or grievances arising out of questions concern
ing the application or interpretation of this Con
tract
The Local Union President or his designee shall
be granted the right to visit the plant in which he is
employed, after requesting such permission from the
local plant management to investigate matters per
taming to complaints and/or grievances arising out
of questions concerning the application or interpre
tation of this Contract
Article 18
Relief
Section 1 All hourly employees are entitled to
and shall receive, relief time as follows
(e) Additional relief shall be provided where heat
or cold conditions warrant 4
Another contractual provision which is pertinent to
Respondents defense in this case is found at article 26,
the grievance procedure It is sufficient to note without
quotation that the grievance procedure outlines a 4 step
process followed by a final and binding arbitration pro
cedure set out in article 27 of the contract
According to the testimony of Sternfield, uncontra
dicted in this regard Respondent at its Wilson facility
manufactures glass containers under extreme heat and
noise conditions It appears natural therefore, that the
Unions and Respondent would be concerned with the
health and safety of unit employees Such concerns
appear to be embodied in article 28 of the agreement en
titled Health and Safety which provides for an effec
tive safety program and recognition of the industry
standards as the minimum guidelines for first aid and
medical facilities and personnel Moreover at article 29
entitled On Job Health Production the agreement
states that
The Company will provide adequate heat light, and
ventilation to employees, and will continue its best
effort to devise systems to control drafts noise,
fumes dust, grease, and job hazzards which em
ployees may be subject to at their place of work
It is the Unions' claimed concern for unit employees
health and safety which gives uses to this case
* The provision on additional heat relief was contained in previous
agreements covering the automatic machine department employees but
appeared for the first time in the production and maintenance contract
beginning with the current agreement
AMERICAN NATIONAL CAN CO 909
B The Union s Request for Access
Local President Sternfield testified that a labor man
agement meeting occurred on 20 May 1987 attended by
the Local s business committee including Sternfield the
Local's officers representatives of the Local's safety
committee, Tom Whitley the finished products manager
for Respondent, Paul Bolin, the assistant plant manager
George Clayton, director of industrial relations for Re
spondent at Wilson, and King Ghegan, plant manger
One topic at this meeting was the Local s concern over
excessive heat in the plant Sternfield testified that the
Unions position on heat relief was outlined at the meet
ing and he attempted to ascertain Respondents position
regarding application of the heat relief provision in arti
cle 18 section 1(e) of the new bargaining agreement Ac
cording to Sternfield he and the Local s safety commit
tee had done some research on heat stress and the meas
urement of heat stress conditions Sternfield testified that
at this meeting he asked Ghegan if the Union could
come in and monitor temperatures Ghegan declined
saying that Respondent would determine when the con
ditions warranted additional heat relief for employees
Sternfield asked if the Company had any figures or took
measurements on the heat and was informed that they
did not
Following the 20 May meeting, Sternfield wrote the
Company a letter dated 27 May requesting specifically
that representatives of the Local be permitted to monitor
temperatures at the Wilson facility for the purpose of
determining if the Company is in compliance with Arti
cle 18 Section 1(e) and Article 29 of the production and
maintenance contract and Article 18 Section 1 and Arti
cle 29 of the automatic machine department contract
Sternfield s letter went on to state that the Local intend
ed to use a wet bulb globe thermometer for the monitor
ing in various areas of the plant on different days and
times The letter stated that it was the Local s view that
article 1, section 1 and article 3, sections 1 and 2 entitled
it to access as did the National Labor Relations Act
Sternfield s letter added that a denial of the request
would be subject to the grievance procedure and a com
plaint with the National Labor Relations Board or other
appropriate legal action The letter concluded with a
request for a response from the Company to seven stated
questions regarding Respondents position with respect
to the application of article 18 section 1(e) and other
matters pertaining to heat illness of employees
Respondent replied to Sternfield's letter through a
letter from Plant Manager Ghegan to Sternfield dated 8
June Ghegan stated in the letter that it was the Compa
ny's intention to live up to the bargaining agreement
with respect to extra relief recognizing that relief for
heat is an individual consideration based upon a number
of circumstances involving the person work area, work
activity, time of day, and the environment " The letter
further stated
and fluid replacement, first aid training, evaluation
of the work area for possible improvements and
other considerations
It is our responsibility to make the determination
for heat and cold relief and we will be sensitive to
conditions in making that decision It will not be
necessary for Union representatives to be involved
in a monitoring program and believe an equitable
and fair relief program will be administered
On 3 June prior to receipt of Ghegan s response to
Sternfield's letter, Sternfield in a conversation with In
dustnal Relations Manager Clayton asked again if the
Unions could come in and monitor temperatures in the
plant because they felt a heat stress situation existed
Clayton denied the request
On 2 July, Sternfield again met with Clayton and
Ghegan On this occasion, Sternfield was accompanied
by Joseph Pitts, a representative of the International
Both Sternfield and Pitts testified that each requested
permission for access to monitor temperatures in the
plant Ghegan refused the requests Pitts also asked them
if the Unions could bring in a mutually acceptable by
gienist to monitor temperatures That request likewise
was refused Pitts further asked if the International could
send in a health and safety specialist for this purpose and
that request was similarly refused It is clear, however,
that both Pitts and Sternfield were granted access to the
plant for other purposes on 2 July and Sternfield, a reg
ular employee at the Wilson facility, had access on the
other occasions for other purposes
That Respondent was aware of its operation in a hot
environment according to the General Counsel was
demonstrated by Respondent's posting of a notice on its
bulletin board to employees outlining its hot environ
ment policy " This notice, based on Sternfield s uncon
tradicted testimony in this regard, was posted in mid
July It stated
Recently a great deal of attention has been
drawn to the fact that we in the glass container
manufacturing industry work in a hot environment
This is recognized in our mutually agreed labor
agreement recently concluded in St Louis The
Company s responsibility for the health and well
being of its employees is also well documented in
the labor agreement and numerous Federal and
state statutes Foster Forbes has and will continue
to live up to its obligations both legal and moral for
the safety of those people in our employ
You will shortly be advised of a schedule training
session concerning heat related problems Supervi
sory personnel will receive similar training These
sessions will instruct you in identification, first aid,
reporting procedures and methods to avoid heat re
lated problems
It is recognized that work related heat illness can
under conditions be an occupational illness and as
such the Company understands its obligation to
educate all its employees on the management of this
potential condition including but not limited to, salt
Respondent's evidence regarding the Union s request
for access was presented through Ghegan Although in
dicating some uncertainty, Ghegan said that he did not
recall Sternfield specifically asking for access during the
meeting on 20 May, but he acknowledged that Sternfield
910 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
did discuss with him the heat relief issue and asked how
Respondent was going to apply the heat relief standard
Ghegan also acknowledged that at the meeting on 20
May, Sternfield did discuss with Respondent the use of a
device called a wibget" rather than a wet bulb globe
thermometer to measure heat stress conditions Sternfield
had indicated that the Union was considering obtaining a
wibget with the thought of entering the plant with it
Ghegan also admitted that at the 20 May meeting he was
provided with a sheet of commercial literature describing
the "wibget "5 It claimed that the wibget is a `proven
instrument used worldwide for measuring the environ
ment factors contributing to human heat stress " It fur
ther claimed the capability of measuring air tempera
ture, humidity, and radiant heat in one heat stress
index ' 6
I find it unnecessary to resolve the apparent conflict
between Sternfield and Ghegan regarding the Unions re
quest for, and Respondent's denial of, access at the 20
May meeting Sternfield s request for access in the letter
of 23 May was quite clear His other request for access
for monitoring purposes on 3 June was also uncontra
dicted as were the requests of Pitts and Sternfield made
on 2 July Moreover Respondent generally admits it has
denied the Union access for heat monitoring utilizing a
wet bulb globe thermometer or a wibget "
It was not until 24 September that Sternfield filed a
grievance complaining that Respondent was not comply
mg with the heat relief provision in article 18, section
1(e) The grievance was carried through step 3 of the
grievance procedure where it was denied on 13 Novem
ber The Union did not take the grievance further
C Arguments of the Parties
The General Counsel and the Unions argue, as the
complaint alleges, that Respondent's denial of access to
the Unions for heat monitoring purposes constituted a
breach of Respondents obligation to bargain in good
faith under Section 8(a)(5) of the Act under the princi
ples of law recited in Holyoke Water Power Co 273
NLRB 1369 (1985), enfd 778 F 2d 49 (1st Cir 1985)
Hercules Inc 281 NLRB 961 (1986), and ASARCO Inc ,
276 NLRB 1367 (1985) enfd as modified 805 F 2d 194
(6th Cir 1986), are also cited as sustaining and applying
the Holyoke principle and supporting the position of the
General Counsel and the Unions here In Holyoke the
Board noting that health and safety conditions are terms
and conditions of employment about which an employer
is obliged to bargain on request, held that the union in
that case was entitled to requested access to the employ
er s facility to measure noise levels in a fan room in
which unit employees worked However, in determining
the right to access, the Board in Holyoke established a
balancing test under which it balanced the employer s
property rights against the employees' rights to proper
representation by the union and held that where it is
found "that responsible representation of employees can
be achieved only by the union s having access to the em
ployer's premises, the employers property rights must
yield to the extent necessary to achieve this end ' But
the Board limited access to that which was necessary to
achieve responsible representation, and went on to state
that where a union could `effectively represent employ
ees through some alternate means other than by entering
on the employer's premises, the employers property
rights will predominate, and the union may properly be
denied access ' 7
The General Counsel and the Unions argue here that
the Unions requests for access to measure heat stress
conditions in the bargaining unit at the Employer's facili
ty were obviously related to health and safety conditions
and therefore were terms and conditions of employment
about which Respondent was obliged to bargain They
further argue that monitoring of the heat stress condi
tions could only be made through access because there
were no alternative means for taking such measurements
without entering Respondent's premises Moreover,
access without an objective environmental measuring
device such as the wibget would not be as helpful in de
terming the existence of conditions which would war
rant relief Accordingly, they assert that Respondent has
no overriding property rights warranting denial of access
under the circumstances here, particularly in light of the
fact that Respondent has contractually granted nonem
ployee union representative access for purposes other
than monitoring heat stress conditions with a wet bulb
globe thermometer or wibget
Respondents defense is essentially two pronged First,
Respondent contends that the matter should be deferred
to the dispute resolution procedures contained in the col
lective bargaining agreement under the principles an
nounced in Collyer Insulated Wire supra In support of
this contention, Respondent points to the Unions filing
the grievance on 24 September contending that Respond
ent was in violation of article 18, section 1(e) of the col
lective bargaining agreement in that it was not providing
employees heat relief in accordance with the contract
Respondent takes the position that it is willing to submit
the grievance to step 4 of the grievance procedure or to
arbitration It takes the further position that it is willing,
in conjunction with the grievance concerning the heat
relief provision of the contract to arbitrate whether Re
S A copy of the literature was received in evidence and contains the
following general description of the battery powered 10 1/2 ounce
device
The mini wibget consists of the instrument case electronic meter
and sensors The electronic meter features a digital readout control
switch connector jacks for the sensors and a charger jack (optional
on some models) The sensors include a wet bulb and globe sensor
6 It is Respondents opposition to this heat stress index which under
lines Respondents actions in this case Such opposition misses the point
to the extent it perceives the Union s measurement of the factors estab
lishing the index as binding Respondent to acceptance of the index in ap
plying the collective bargaining agreement
7 Holyoke at 1370 In Hercules Inc supra the Board in applying Hol
yoke held that the employer was required to permit union representatives
to enter its facility to investigate industrial accidents to conduct health
and safety inspection and to conduct tests for determining the presence
of toxic or hazardous fumes Moreover the Board in Hercules clearly
placed on the employer the burden of establishing those factors which
would warrant a conclusion that its property rights are paramount to the
union s access for relevant and necessary information In ASARCO Inc
supra the Board found that it was essential for a union s industrial by
gienist to have access to a mine in order to investigate a fatal accident
involving a bargaining unit employee
AMERICAN NATIONAL CAN CO
spondent has complied with the access provision of the
bargaining agreement and, if it has not, what remedies
should be granted
With respect to the merits of the case, Respondent
contends that it had never agreed with the Unions to
apply a particular standard in determining the necessity
for heat relief at any of Respondent's facilities It there
fore argues that the Union s attempt to gain access for
monitoring purposes utilizing a wet bulb globe thermom
eter or wibget' is an attempt to impose on Respondent
a heat stress standard for relief which Respondent had
never agreed to and which the Unions could not have
obtained through collective bargaining Respondent as
serts that a Board Order requiring it to grant access to
the Unions to make wet globe thermometer measure
ments would force Respondent's agreement to terms
which is contrary to the principles of H K Porter Co v
NLRB, 397 U S 99 (1970) Respondent points out in this
regard that no heat stress standard has ever been estab
lished by the Occupational Safety and Health Adminis
tration (OSHA) essentially because heat stress is highly
subjective and dependent on too many factors variable
with the individual employee not subject to accurate
measurement
D Conclusions
The issue of deferral is primary and must be addressed
and decided before the merits can be considered See
Collyer Insulated Wire, supra at 843, Transport Service
Co, 282 NLRB 111 (1986) Respondent's contention that
the case sub judice should be deferred was first raised in
a preheanng motion to dismiss which was duly referred
to me for ruling The motion was orally denied in a pre
hearing telephonic conference with the parties inasmuch
as the Local s filed grievance pertained to the heat relief
complaint under article 18 section 1(e), and not the
access issue Moreover, the access issue which provided
the basis for the complaint here although related to the
grievance, was viewed as being similar to a request for
Information8 which the Board generally views as not de
ferrable because it would result in a two tiered system
requiring a union to file a grievance in order to obtain
potentially relevant information to which it is otherwise
entitled to assist it in the processing of a second underly
ing grievance See e g, Stephen Oderwald Inc, 284
NLRB 277 (1987), Teamsters Local 851 (Northern Air),
283 NLRB 922 (1987), Clinchfield Coal Co, 275 NLRB
1384 (1985) United Technologies Corp 274 NLRB 504,
505 (1985), General Dynamics Corp (II), 270 NLRB 829
(1984), General Dynamics Corp (I) 268 NLRB 1432
(1984), and TRW Inc, 202 NLRB 729 (1973) 9 Howev
er, the prehearing ruling regarding deferral was without
prejudice to Respondent's raising the matter again at the
hearing or in its brief What Respondent did not specifi
cally note in its preheanng motion and what did not
become apparent until the hearing, was the existence of
article 3, section 3, in the bargaining agreement allowing
8 See Winona Industries 257 NLRB 695 (1981)
8 It is on the equation of requests for access to requests for information
cases that the General Counsel and Unions rely in opposing deferral
under Collyer here
911
the Unions access to investigate matters "pertaining to
complaints and/or grievances " After reflection and con
sideration of the parties briefs, I conclude the existence
of this contractual provision is not only significant but
controlling on the deferral issue in light of Respondent's
stated willingness to arbitrate the access dispute in con
junction with the heat relief grievance Thus, although
the Unions' right of access to Respondent s premises is
predicated on the statutory right of employees to be rep
resented by a labor organization of their choice, it is par
alleled in this case in the collective bargaining agreement
itself 10 Further, deferral here would appear to create no
risk of a two tiered dispute resolution system because
Respondent is willing to arbitrate both the existing gnev
ance and the access issue that preceded the grievance i i
Finally, the Board in Holyoke specifically rejected the
analogy drawn in Winona , supra, between requests for
access cases and simple requests for information cases
There appears to be no logical reason why such rejection
would be inapplicable when determining whether the
case should be deferred under Collyer principles
Even if the denial of access is equated with refusals to
provide relevant information, the Board has made excep
tions in its general policy of refusing to defer such cases
to arbitration In Transport Service Co, supra, the Board
deferred to arbitration a refusal to provide information
because the dispute before the Board turned on an in
terpretation of various contract provisions, a broad ar
bitration clause ' existed in the bargaining agreement
which encompassed the matter at issue , the respondent
had "asserted its willingness to arbitrate the dispute,
and the parties had a "stable collective bargaining rela
tionship " The Board reached this result even though the
case also involved unilateral changes in the terms of the
collective bargaining agreement, refusals to furnish infor
mation necessary for grievance processing direct dealing
by the employer with employees bypasing the union, and
a threat of retaliation against an employee if he did not
withdraw a grievance The employers conduct, the
Board stated, did not amount to a repudiation of the bar
gaining agreement or a rejection of collective bargaining
principles The interference with grievance processing
was viewed as isolated and the employer's actions did
not otherwise undermine the grievance arbitration proce
dures The Board also noted that the parties had contin
ued to file, process, and settle grievances Lastly, and
almost parenthetically the Board observed that no party
had even excepted to the administrative law judge s deci
sion to defer in that case
The instant case may be distinguished from Transport
Service ultimately perhaps, on the basis of the existence
of exceptions to any decision by the undersigned to defer
10 Thus it can be said here not only that there is a broad grievance
and arbitration provision in the collective bargaining agreement but also
that such provision by virtue of the access provision clearly encom
passes the unfair labor practices alleged See Postal Service 273 NLRB
1746 (1985) United Technologies Corp 268 NLRB 557 (1984)
ii Unfortunately even present access with a wibget would not be fully
useful in resolving the grievance because of the improbability of the exist
ence of identical environmental temperatures and conditions which gave
rise to the grievance Moreover and in any event the access issue long
predated the actual filing of the grievance on heat relief
912 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
this matter to the parties grievance arbitration machin
ery However, it is obvious that the absence of excep
tions was not the linchpin of the Boards decision in
Transport Service If it had been, the Board would not
have taken the occasion to spell out its basis for agreeing
with the administrative law judge s less detailed reason
ing for deferral
Respondents actions in the instant case when com
pared with that of the employer in Transport Service
present an infinitely smaller risk to the successful resolu
tion of the basic dispute between the parties through the
arbitral process And all the reasons for deferring enu
ciated in Transport Service are present in the instant case
Thus, the Unions right to access is specifically provided
for under the collective bargaining agreement and ac
cordingly is not dependent on the Act The interpreta
tion and extent of application of the access provisions are
matters within the province and expertise of arbitrators
The grievance machinery and arbitration clause are
clearly sufficiently broad to encompass the issue of
access here involved, including access with a wibget,
and the Respondent has stated its willingness to arbitrate
the dispute on access in conjunction with the heat
relief' issue and any remedy for any breach of the bar
gaining agreement found 12 Lastly, it is quite clear that
Respondents conduct here does not reflect a repudiation
of the collective bargaining agreement or even the provi
sion on access, for Respondent has continued to apply
the bargaining agreement and to allow the Unions access
to the plant for other purposes Nor has there been any
unilateral modification of the bargaining agreement al
leged 13 The grievance arbitration procedures of the bar
12 The Board has pointed out in Combustion Engineering 272 NLRB
215 217 (1984) that the flexibility of remedies is a major advantage of
arbitration
13 Although an argument could be made that Respondents denial of
access to the Unions under the circumstances here unilaterally imposed a
condition precluding access for heat monitoring purposes with a wet bulb
globe thermometer see e g Boyer Bros 217 NLRB 342 344 (1975) that
gaining agreement have at all times remained intact Ac
cordingly, deferral would appear to be particularly ap
propnate here
Considering the foregoing, I conclude that Transport
Service and the fact that the parties have a specific provi
sion in the collective bargaining agreement granting
access, along with the other factors noted, dictate that
consistent with the principles of Collyer, supra this
matter be deferred to arbitration under the collective
bargaining agreement between the parties In short, the
issue of access in this case including access for the pur
pose of measuring heat stress with a wet globe ther
mometer presents issues of contract interpretation and
application, the resolution of which is within the special
competence of an arbitrator with experience and skill in
terpretmg and deciding such issues
Based on the above, I reach the following
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 The Unions each are labor organizations within the
meaning of Section 2(5) of the Act
3 The issues raised in paragraph 12 of the complaint
regarding Respondent's failure and refusal to allow the
Unions requested access to Respondents plant may, and
appropriately should, be deferred for resolution under
the grievance arbitration provisions of the collective bar
gaining agreement between the parties Accordingly,
such complaint allegation is dismissed and, in the absence
of other allegations of unlawful actions alleged and
proved in the complaint, the complaint is dismissed sub
ject to the qualifications contained in the recommended
Order set forth below
[Recommended Order for dismissal omitted from pub
lication ]
argument was neither alleged advanced or argued and need not be con
sidered